Copyright Infringement Claim Against Songwriter Dr. Luke Fails Absent Evidence of "Access"; 9th Cir.

Loomis v. Cornish, No. 13-57093 (9th Cir. Sept. 2, 2016).

Plaintiff composer's claim, alleging that high-profile songwriters (including Dr. Luke) stole a two-measure vocal melody and used it as the theme for the verse melody in their hit song “Domino,” failed because the plaintiff did not put forth any potentially admissible evidence to establish that the Domino songwriters had access to plaintiff's song, holds the 9th Circuit in affirming summary judgment for the defendants.

Will Loomis, composer of the song “Bright Red Chords,” alleged that the defendants stole part of his song. The panel held that at summary judgment Loomis failed to put forth any potentially admissible evidence to establish that the Domino songwriters had access to Bright Red Chords, either on a chain-of-events theory or a widespread-dissemination theory. Accordingly, he failed to establish copyright infringement.

Questions Whether "Iron Man" Comic Theme Song A Work Made For Hire Under 1909 Copyright Act; 2nd Cir.

Urbont v. Sony Music, No. 15-1778 (2d Cir. July 29, 2016).

Plaintiff, who claimed ownership rights in the composition of the "Iron Man" comic theme-song from the 1960s, raised sufficient questions of material fact to rebut defendants' "work made for hire" defense under the 1909 Copyright Act and its "instance and expense" test, holds the Second Circuit in reversing the district court's grant of summary judgment to the defendants on Plaintiff's copyright infringement claim.  Further, the defendants -- who were not the alleged employer (Marvel Comics was) and therefore a third-party to the alleged relationship -- had standing to assert the work made for hire defense.  However, the appellate court held that the lower court properly dismissed the plaintiff's state-law claims as pre-empted, rejecting the plaintiff's argument that there was a separate pre-1972 sound recording subject to state laws rather than the song as part of an audio-visual work and therefore preempted.

Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity

Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].

The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town.  Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once.  The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.

According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."

The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording.  However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable.  Specifically, the Court found there was no substantial similarity.

First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient.  "Oh" was not the heart of the composition, having appeared only once and being a common word.  As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording.  That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).

Judge Finds Liability In Shakira Infringement Trial

Mayimba Music, Inc. v. Sony Corp. of Am. et al., No. 1:12-cv-01094-AKH (SDNY filed 08/19/14) [Doc. 104].

This is an infringement action alleging that a Shakira song infringes the copyright in a musical composition.  After a bench trial, the Court found: (a) that plaintiff, as exclusive licensee, had standing; (b) there was no proof of laches; (c) the Shakira song was an unlawful copy of plaintiff's song; and (d) the US distributors were liable for infringement.  The next stage was determining damages, or alternatively a permanent infringement.

Copyright Claim Dismissed Against Usher Because No Substantial Similarity

Edwards et al. v Usher Raymond IV et al., No. 1:13-cv-07985-DLC (S.D.N.Y. filed 05/23/14) [Doc. 36].

Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition.  On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law.  Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.

First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase.  Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar.  Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar.  Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.

7th Cir. Affirms Dismissal of "Nikita"/"Natasha" Suit Against Elton John

Hobbs v. Elton John, No. 12-3652 (7th Cir. July 17, 2013).

Plaintiff composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress.  Plaintiff tried to publish  his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Plaintiff had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Plaintiff eventually demanded compensation
from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Plaintiff's complaint for failure to state a claim, and the district court granted the defendants’ motion.  The 7th Circuit affirmed.

The Court held that Plaintiff failed to state a claim for copyright infringement because, even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar.  Defendants conceded that Plaintiff owned a valid copyright in the song and that Defendants had access to it.  "Thus, the defendants can only prevail on their motion to dismiss if 'Natasha' and 'Nikita'
are not 'substantially similar' as a matter of law. That is, if as a matter of law 'Natasha' and 'Nikita' do not 'share enough unique features to give rise to a breach of the duty not to copy another’s work'."  The Court found that Plaintiff's argument "flounders on two well-established principles of copyright law."  First, that the Copyright Act does not protect general ideas, but only the particular expression of an idea.  And second, even at the level of particular expression, the Copyright Act does not protect “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” A careful review of both songs’ lyrics reveals that Plaintiff's first four allegedly similar elements are expressed differently in “Natasha” and “Nikita.” And the remaining similar elements are rudimentary, commonplace, standard, or unavoidable in popular love songs.  The two songs simply “tell different stories."

Because “Natasha” and “Nikita” are not “substantially similar” as a matter of law, Plaintiff's copyright infringement claim failed as a matter of law.

Sugarhill Sues Over "Uptown Anthem"

Sugarhill Music Publishing v. Warner/Chappel Music, Inc., No. 1:12-cv-09225-PAC (S.D.N.Y. complaint filed Dec. 19, 2012).

According to the complaint, plaintiff owns the copyright in the musical composition "That's The Joint" (1981), and defendants co-own the copyright in the musical composition "Uptown Anthem" (1991).  Plaintiffs allege in paragraph 7 of the complaint that defendants' song incorporates plaintiff's song by "using the three-syllable vocal phrase 'We gonna' and rhythmic pattern a total of 41 times, as a strong hook in the song."

Wha?

Bob Dylan's former Greenwich Village haunt "Cafe Wha?" sued for alleged copyright infringement based on the public performance of copyrighted musical compositions.

Rodsongs et al. v. Cafe Wha NY, LLC, No. 09-01207 (S.D.N.Y. filed Feb. 10, 2009).

Paul Simon Settles Clock Suit

The New York Post reported that Paul Simon has settled his copyright infringement suit against defendants' unauthorized use of plaintiff's composition, "Bridge Over Troubled Water", in connection with defendants' sale of clocks throughout the United States.

Prior post.

I Want Candy

Plaintiff alleges copyright infringement arising from defendant's use of plaintiff's original musical composition "I Want Candy".

Sony/ATV Songs LLCv.Chickdowntown; Chick LLC; Amy Reed; Does 1-20, No. CV-7076 *SDNY filed 8/8/2008)

A Clockwork Orange

Paul Simon v. Rhythm USA Inc.; Rhythm Watch Co. Ltd., No. CV-6440 (S.D.N.Y. filed 7/18/08):

Alleged copyright infringement arising from defendants' unauthorized use of plaintiff's composition, "Bridge Over Troubled Water", in connection with defendants' sale of clocks throughout the United States.

EU Initiatives

The European Commission adopted two initiatives in the area of copyright (July 16, 2008). First, the Commission proposes to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions.

DMCA: Prince Blocks YouTube Video of 'Creep' Cover

Here's an interesting question under the Digital Millennium Copyright Act:

Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?

Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".

So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?

Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.

Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.

But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.

[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]

Oh, Nelly!

Juan Antonio Castro Rios p/k/a/ Tony Tun Tun v. Coalition Music, LLC et. al, No. 1:08-cv-20922-AJ (S.D.Fla filed Apr. 4, 2008).

Allegations:

Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.

Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.

The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.

Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.

Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".

[Request copy of the complaint]

"One phone call will have ya body dumped in Marcy"

Welcome to the rap game...featuring, THE GAME! Suit filed yesterday in SDNY for copyright infringement arising from defendants -- rapper the Game, his label Universal/Interscope, his publishers -- unlawful use of plaintiff's original "music compositions." OTCS can picture the plaintiffs sitting, feather pen in hand, scribing the score on sheet music! Yeah right...probably put together some hooks, samples, and mixed it all together. But what does OTCS know? Who has the inside scoop?

Fact is: if you are going to work in the music industry, especially rap & hip-hop, get everything in writing! Otherwise, your boy will start playing games on you...

[Ryan Lessem; Douglas Johnson v. Jayceon Terrell Taylor p.k.a. The Game; UMG Recordings Inc.; Universal Music Group Inc.; Interscope Records Inc.; Lastrada Entertainment Co. Ltd.; Sony/ATV Music Publishing LLC; Universal Music Corp.; Warner Chappell Music Inc.; Music of Windswept; Black Wall St. Publishing LLC11/27/2007 07 CV-10601 ]

Ain't that a Kick in the Head...

The Rat Pack (or at least the modern Las Vegas reincarnation of them) was sued by song-writers of "Ain't that a Kick in the Head", "Everybody Loves Somebody", and "Come Fly with Me" for copyright infringement of the compositions. (Alleged infringement occurred during performances of the Rat Pack Show at the Greek Isles Hotel & Casino, and sale of associated CDs.)

What's the commotion, eh? WHAT'S THE COMMOTION?!

[Barton Music Corp. v. TRP Entertainment, LLC et al., 07-cv-01361-BES-PAL, filed Oct. 9, 2007, D.C. Nev.]