Bit Parts

Sixth Circuit Agrees Non-Party Interview Quotes Are Inadmissible Hearsay for Purpose of Establishing Direct Evidence of Copying in Infringement Case over Classic Rock Song "Gimme Some Lovin'"

The U.S. Court of Appeals for the Sixth Circuit affirmed a district court grant of summary judgment in favor of defendants musician Steve Winwood and Kobalt Music Publishing in a copyright infringement case. Parker v. Winwood, 18-5305. Songwriter William Dean Parker and the wife of Parker's co-songwriter Homer Banks alleged the 1960s Spencer Davis Group hit "Gimme Some Lovin,'" which Winwood co-wrote with his brother Mervyn "Muff" Winwood, infringed on the bass riff from the Parker/Banks' 1965 composition "Ain't That a Lot of Love," which has been covered by numerous artists. The U.S. District Court for the Middle District of Tennessee decided the plaintiffs failed to present admissible evidence of copying. (The district court also found it lacked specific personal jurisdiction over Muff Winwood by noting: "What is missing … is any evidence that Mervyn himself directed distribution of the song within the United States or specifically within Tennessee.") Four documents the plaintiffs submitted to show copying included an excerpt from an interview with Spencer Davis in the 1990 book Rock Lives: Profiles and Interviews by Timothy White in which Davis said the bass riff in "Gimme Some Lovin'" was taken from "Ain't That a Lot of Love." The other three documents were pages posted on www.stevewinwood.com of scans of articles originally published in Musician, Mojo and RH magazines, in which Davis and Steve Winwood's bandmate Jim Capaldi from the music group Traffic made statements about the bass riff similar to Davis's statement in Rock Lives. In its affirmance, the Sixth Circuit agreed these documents amounted to inadmissible hearsay under the Federal Rules of Evidence. The appeals court noted of the magazine articles, for example, that "because plaintiffs seek to use Davis's and Capaldi's statements for their truth, because Steve Winwood did not make those statements, and because one does not manifest adoption of a statement or belief in it simply by hosting it on a website, the district court correctly excluded the documents as hearsay."

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 Transformative Use Defense Defeats Hard Rock Hamilton Persona Suit over Gears of War Character

The U.S. District Court for the Eastern District of Pennsylvania ruled against former National Football League player and professional wrestler Lenwood Hamilton in his action over the "Cole Train" character in the Gears of War video games. Hamilton v. Speight, 2:17-cv-00169. Hamilton claimed the video game character illegally took from his "Hard Rock" Hamilton wrestling persona. The complaint alleged violation of Pennsylvania's right-of-publicity statute, 42 Pa. C.S.A. §8316, as well as common law misappropriation and invasion of privacy. The defendants included Epic Games and Microsoft. Granting a defense motion for summary judgment on First Amendment grounds, District Judge Anita B. Brody explained: "[A]lthough the Hard Rock Hamilton and the Cole characters' likenesses certainly share some similarities, the Hard Rock Hamilton character's identity is obviously not the 'very sum and substance' of the Cole character's identity. Second, the context in which the Cole character appears and performs is profoundly transformative. Cole — who engages in extraordinarily stylized and fantastical violence against cartoonish reptilian humanoids on a fictional planet in a fictional war — does not 'do[] what the actual' Hard Rock Hamilton character does — engage in professional wrestling on Earth," citing Hart v. Electronic Arts Inc., 717 F.3d 141 (3d Cir. 2013).

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is also an entertainment attorney, as well as author of the books Baby You're a Rich Man: Suing the Beatles for Fun & Profit and They Fought the Law: Rock Music Goes to Court, the latter which is available in an updated, expanded edition in Amazon's Kindle Store. For more information: www.stansoocher.com.