Bit Parts

Copyright Termination Claims Found Timely, But Loan-Out Companies Can't Terminate Copyright Assignments

The U.S. District Court for the Southern District of New York decided that, under the federal Copyright Act of 1976, that artists' loan-out companies can't terminate assignments of the artists' copyrights. Waite v. UMG Recordings Inc., 19-cv-1091. In a class action lawsuit, recording artists sued seeking to terminate assignments of the copyrights in sound recordings covered by the artist's agreements with UMG-owned companies. UMG moved to dismiss the case in part as untimely ownership claims, which UMG argued had accrued when the artists signed their recording agreements in the 1970s and 1980s. District Judge Lewis A. Kaplan instead found the claims were for copyright infringement, which may be brought within three years of the last infringing act. As District Judge Kaplan noted: "[T]he gravamen of plaintiffs' claim is defendant's refusal to recognize their termination rights. Termination rights are, by their very nature, about the 'nature, extent, or scope of copying' a particular work. Indeed, it is impossible for there to be a legally cognizable infringement claim until a termination right vests, a valid and timely termination notice is sent, is ignored, and the copyright's grantee continues to distribute the work." But the district judge went on to rule against first-named plaintiffs John Waite and Joe Ely, who had signed the recording agreements through their artist loan-out entities. Judge Kaplan found that, under §203 of the Copyright Act, "loan-out companies, which 'loan' out an artist's services to employers and enter into contracts on behalf of the artist, do not have a termination right under the statute." 

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Judge Unhappy With Damon Dash's Trial Behavior

The U.S. District Court for the Southern District of New York criticized the trial demeanor of film and music producer Damon Dash in a trademark and copyright action against him over the movie Mafietta. Brooks v. Dash, 19-cv-1944. Ruling in favor of plaintiff Edwyna Brooks, author of the Mafietta book series, on her causes of action, District Judge Jed S. Rakoff noted of Brook's copyright authorship claim, "the parties did not mutually intend Dash to be a co-author of the film and therefore Dash did not co-own the copyright in the film." District Judge Rakoff explained he found "generally credible the testimony of Brooks. In contrast, even disregarding the fact that Dash was throughout the trial disruptive and apparently incapable of exercising ordinary civility, the Court finds Dash's testimony to be unworthy of belief."

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New York Federal Court Sees No Copyright Infringement or False Endorsement in Use of Mural in Film

The U.S. District Court for the Eastern District of New York decided that the unlicensed inclusion of a mural by peace activist LMNOPI in the motion picture Bushwick was a transformative copyright fair use. LMNOPI v. XYZ Films LLC, 18-CV-5610. LMNOPI's mural is seen in a full shot for under four seconds in the movie. District Judge LaShann DeArcy Hall observed: "A fair reading of Plaintiff['s] complaint allows only for the conclusion that the target audience of the Film is drastically different from that of the Mural. The Film targets moviegoers of 'action thrillers' with a plot 'antithetical to the message of peace that forms the basis of … Plaintiff['s] work[.]" The Mural, by contrast, targets 'street art enthusiasts' drawn to the graffiti culture of Brooklyn." District Judge Hall also dismissed a Lanham Act false endorsement claim by LMNOPI and co-plaintiff Ta'Kaiya Blaney, an internationally known actress and singer/songwriter depicted in the mural. Here, the district court noted that "the Mural appears briefly in the Film in a scene with several other works of street art. Additionally, Plaintiffs have not alleged a single plausible fact that the inclusion of the Mural in the Film would serve to confuse consumers that Plaintiffs sponsored, endorsed, or were otherwise associated with the Film."

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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. For more information: http://www.stansoocher.com.