"Everyday I'm Hustlin'" Phrase Not Copyrightable

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Roberts v. Gordy, No. 13-cv-24700 (S.D. Fla. dated Sep. 15, 2015).

In a dispute between the alleged owners of the song "Hustlin'," whose chorus repeats the phrase "everday I'm hustlin'," and members of the group LFMAO who sell merchandise bearing the phrase "everday I'm shufflin'," a phrase from their hit song "Party Rock Anthem," the Court held that the isolated phrase "everyday I'm hustlin'" is not copyrightable.  The Court noted that "copyright protection does not automatically extend to every component of a copyrighted work," and that "the overwhelming authority is that short phrases or common or ordinary words are not copryightable."  It was indisputable that the plaintiff's "Hustlin'" composition and lyrics was an original creative work subject to copyright protection -- but, the question was whether the use of a three-word phrase appearing int he musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constituted an infringement of the composition.  "The answer, quite simply, is that it does not."  Moreover, the defendants set forth various evidence that the terms "hustling" or "hustlin'" have been used in numerous songs prior to Plaintiff's creation of "Hustlin'" and that at least one song pre-dating "Hustlin'" has the exact lyric "everday I'm hustlin'" in it.  Lastly, the Court was unable to find any basis or precedent supporting the conclusion that a short, modified, set of words printed on merchandise can infringe on the copyright for a musical composition.  Plaintiff's rights do not extend that far, the Court concluded.

Bob Marley Heirs Succeed On Appeal In Merchandising Case

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Fifty-Six Hope Road Music v. A.V.E.L.A., No 12-17502 (9th Cir. Feb. 20, 2015).

The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise.  Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court.  The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights.  Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful.  Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.

Taylor Swift Faces Trademark Action Concerning Merchandise

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Blue Sphere, Inc. v. Swift, Case No. SACV 14-00782-CJC (C.D. Cal. Sep. 17, 2014).

The Court denied country-star Taylor Swift's motion to dismiss plaintiff's trademark infringement and dilution case.  Defendants contended that Plaintiffs had failed to show a likelihood of confusion.  The Court found that while it is possible that Plaintiffs may not be able to present sufficient evidence to survive a summary judgment motion, they had plausibly alleged facts to survive a motion to dismiss.  Plaintiffs alleged that they own the mark LUCKY 13, and further alleged that the Defendants’ use of the identical LUCKY 13 mark in connection with the sale of t-shirts online and through the online promotion of a “Lucky 13 Sweepstakes” is likely to cause confusion.  The Court also found that Plaintiffs sufficiently alleged that the mark is famous so that the dilution claim survived.

English Court Finds TopShop's Sale Of Rihanna T-Shirt Without Her Approval Was "Passing Off"

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Robyn Rihanna Fenty et al. v. Arcardia Group Brands Limited (t/a Topshop) et al.; No. HC12F01378, [2013] EWHC 2310 (Ch. July 31, 2013).

This case was before the English High Court of Chancery in London.  In March 2012, the retailer Topshop started selling a t-shirt with an image of the pop star Rihanna on it.  Topshop had a license from the photographer, but not from Rihanna who contended that sale of the t-shirts without her permission infringed her rights.

The court found it "important to state at the outset that this case is not concerned with so called 'image rights'.  Whatever may be the position elsewhere in the world, and how ever much various celebrities may wish there were, there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image."  Instead, "this case is concerned with passing off."  The burden was on Rihanna to establish that she has a goodwill and reputation amongst relevant members of the public, the conduct complained of was likely to deceive those members of the public into buying the product because they think it is authorized by her, and that misrepresentation damaged her goodwill.  For passing off to succeed, there must be a misrepresentation about trade origin.

The Court concluded that Rihanna "was and is regarded as a style icon by many people..." and that she had ample goodwill to succeed in a passing off action.  The scope of her goodwill was not only as a music artist but also in the world of fashion.

"The real issue in this case" was misrepresentation.  The Court concluded that a misrepresentation was made, and held that "it is a matter for the claimants and not Topshop to choose what garments the public think are endorsed by her."  Finding in favor of Rihanna.

Ch-ch-ch-changes!

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(a) U2 + LiveNation = a 12-year global contractual relationship (including concert promotion, merchandising and the band’s website; album distribution and publishing will still be handled by Universal...for now).

(b) Amazon + Grand Theft Auto IV = gamers able to download music discovered via the game's 150 song soundtrack and play on portable devices.

All The Birds Will Be Singin'

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Willie Nelson, "flipping the bird" (i.e., giving his middle finger) in a photograph, is the center of a copyright infringement suit filed in Sacramento. Spencer's Gifts, of shopping-mall fame, has been selling T-Shirts at its physical outlets and online that have a copyrighted image of Nelson imposed thereon. (Article at MSNBC).







Does W. Nelson have any claims of his own? Privacy, name and likeness etc?