Articles Posted in Copyright infringement

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scales of justiceI’m not a judge. And I don’t play one on TV. And despite what I believed was a strong memorandum in support of summary judgment, District Judge Klausner denied the defendants’ motion and set the case for trial.

Recall that defendant’s motion set forth several bases to support the grant of summary judgment. Following is a summary of the Court’s analysis of the motion for summary judgment, and the reasoning applied in denying the motion. Remember that in ruling upon a motion for summary judgment, the Court will construe the facts in the light most favorable to the non-moving party, the plaintiff here.

The Court first reviewed the parties’ expert testimony as well as deposition testimony of other witnesses to address defendants’ three principal defenses: (1) abandonment/waiver, (2) laches, and (3) defective deposit copy.

Defendants argued that Randy Wolfe had clearly abandoned/waived any claims to infringement, as evidenced by a magazine interview he gave many years ago. But the court found evidence that Wolfe’s waiver may not have been heartfelt. For example, the journalist who conducted the interview testified that Wolfe never received or reviewed the interview notes before the article was published. Plaintiff also pointed to the tenor of the interview, which indicated that Wolfe felt cheated by Led Zeppelin and was merely trying to save face and made light of a bad situation.


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treble staffI’ve been on Blog Sabbatical for a few months, but I’m back and jazzed to talk about that Stairway to Heaven copyright infringement lawsuit.

You remember, Randy (“California”) Wolfe’s trustee sued Led Zeppelin, claiming Zep copped the intro section of Stairway from the song Taurus, performed by Spirit. Things have been moving right along.

When we last checked in on the case, the trial judge, Hon. Juan R. Sánchez, had permitted venue to remain in Pennsylvania. But in May 2015, Judge Sánchez entered a final order on defendants’ motion to transfer venue, and found that the individual defendants (Messrs. Plant, Page and Jones) lacked sufficient minimum contacts with Pennsylvania to justify retaining venue. Judge Sánchez transferred the case to the Central District of California.

The parties skirmished back and forth through the discovery phase. On February 25, 2016, the Led Zeppelin defendants fired off a motion for partial summary judgment. The memorandum in support of the motion sets forth some pretty persuasive arguments for granting summary judgment in their favor. WARNING: REVIEW OF DENSE LEGAL THEORIES FOLLOWS. BUT IT’S STILL INTERESTING. Continue reading

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We’ve previously discussed the necessity of club owners and restaurateurs to pay the Performing Rights Organizations (“PROs”) for use of live and recorded music. Depending upon the egregiousness of the failure to pay, the obligation might not be dischargeable in bankruptcy. So, if you’re not licensing the music, what can you do when you get the dreaded demand letter and threat of litigation from ASCAP, BMI or SESAC? You may have some room to negotiate.file0001631184133

Of the three PROs, ASCAP is the most litigious. For example, in May 2015, ASCAP filed copyright infringement suits against seven recalcitrant clubs and restaurants across the country (including one in Atlanta, GA). And while, as a club owner, it may seem unfair to have to obtain licenses from each of the three PROs, bear in mind that by playing unlicensed music, the club is getting a free ride at the expense of the songwriter.

ASCAP President and Chairman, songwriter Paul Williams (check out Paul Williams in the high-camp bomb, Phantom of the Paradise) noted: “We want every business that uses music to prosper, including bars and restaurants. After all, as songwriters and composers, we are small business owners, too, and music is more than an art form for us. It’s how we put food on the table and send our kids to school. Most businesses know that an ASCAP license allows them to offer music legally, efficiently and at a reasonable price – while compensating music creators so we can earn a living from our work and keep doing what we do best – writing music.”

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guitar boyYou’ll recall that the estate of Randy California (né Randy Craig Wolfe, guitarist and songwriter from the 70’s art-rock band, Spirit) has sued Led Zeppelin in Pennsylvania, claiming that Zeppelin copped the opening guitar riff and chord progression from Wolfe’s song, Taurus, to create perhaps the most iconic of all rock songs, Stairway to Heaven. Why sue in Pennsylvania, you may ask?

That’s also the question that Led Zeppelin asked district judge Juan Sanchez. Zep’s first response out of the gate was to move to dismiss the suit, or at a minimum to transfer the venue to the Central District of California – by consent of the defendants  – where at least one of the defendants (Warner Music Group Corp.) resides. Led Zeppelin, the band, as well as the individual members of the group, is represented by Helene Freeman, of NYC’s venerable Phillips Nizer, and local counsel, Michael Eidel of Fox Rothschild. Continue reading

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sheet musicEvery time a restaurant, nightclub or other performance venue permits performance of a song (such as by radio (with certain exceptions), CD or live performance), the venue owes to the rights holder of the song a royalty for playing that song. In order to collect and administer these royalties, membership organizations known as “PROs” (Performance Rights Organizations) have evolved. The PRO membership is composed of songwriters, composers and music publishers. The PROs charge the clubs a licensing fee, which they then collect and distribute to their membership rights holders as royalty payments. By compliance with this rights licensing system, a night club is assured that it is complying with U.S. copyright law, which protects the rights holders’ right to perform the song.

In the United States there are three principal PROs: SESAC (“Society of European Stage Authors and Composers”, the smallest), BMI (“Broadcast Music, Inc.,” the middle bear), and ASCAP (“American Society of Composers, Authors and Publishers,” Papa Bear). When a performance venue fails to pay its royalties to a PRO, the PRO will come after the club to exact its pound of flesh.

Twister’s Iron Horse Saloon was a bar in suburban St. Louis. It failed to pay public performance licensing fees to ASCAP for a number of years. Over this period, ASCAP made numerous efforts to collect the licensing fee, even offering to settle the claim before suing. Finally, unable to collect the fees voluntarily, ASCAP sued the club and its managing members, including one Doug Walker, for copyright infringement and obtained a judgment for $41,000. The club eventually failed, and Mister Walker sought to discharge the ASCAP judgment against him through a chapter 7 bankruptcy.

A fundamental concept of chapter 7 bankruptcy is that an honest debtor will receive a discharge (extinguishment) of virtually all his debts upon completion of the bankruptcy process. He’ll walk away with a ‘fresh start’. I assume Mister Walker believed he would discharge the ASCAP debt in his bankruptcy. Mister Walker was wrong. Continue reading

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The lawsuit filed against Led Zeppelin (May 31, 2014, U.S. District Court in Pennsylvania) by the estate of the late Randy California (of West Coast art rock band, Spirit) – forty-something years later – alleges that Led Zeppelin stole the iconic guitar figure and chord progression that opens “Stairway to Heaven” from a Spirit song written by California (né Randy Wolfe) called “Taurus”. Here, listen for yourself: “Taurus”; “Stairway”.

staircaseTo prevail, California’s estate must prove that Zep copied the prior work and that there is a substantial similarity between the two songs. Copying may be proved circumstantially based on evidence of access and similarity, and there’s an inverse relationship between the amount of access and similarity required: the more access, the less similarity needs to be shown. Similarly, the more similarity exists, the less access must be shown. “Stairway” was first recorded in 1970, and it’s well-documented that Zep had access to “Taurus” through Spirit’s live set, as the bands often performed together in the late-60s. In addition to copying, “substantial similarity” must be shown. “Substantial” means the copying is substantial in degree, as measured qualitatively or qualitatively. “Similar” means that the copy sounds similar to the ears of an ordinary member of the listening audience. Yes, in both songs there is a slow, descending chromatic melody against a common chord progression through the first four measures of each, though the Spirit tune is harmonized very differently from Zeppelin’s, and the guitar phrase in “Stairway” has an elegance lacking in “Taurus”. Yes, there are definite similarities but are they “substantial”?

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In April 2014, published Start a Band, an article by Tom Junod featuring yours truly. Upon opening the article, you’ll find a sound clip at the top called ‘Folsom’, a 50-second promo jingle for our little band, Cousin Billy, using the music – verbatim – though not the lyrics of ‘Folsom Prison Blues’, the Johnny Cash classic. Did Cousin Billy (and the much deeper pocket of Esquire/Hearst Publications) infringe Johnny Cash’s copyright interest in the song? Speaking for Cousin Billy, we sure hope not! But careful legal analysis shows that the jingle would be considered a parody of the original and thus excepted from infringement under the Fair Use doctrine.cousing billy singing

The Copyright statute provides a framework of analysis to determine Fair Use by weighing and balancing the following four factors:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The Supreme Court explicitly recognized parody as a form of criticism or comment, and thus permitted as Fair Use, in Campbell v. Acuff-Rose Music, Inc. (hereafter “Acuff-Rose”), where the Court reviewed a case involving 2 Live Crew’s song, ‘Pretty Woman’, a send-up of the Roy Orbison original, ‘Oh, Pretty Woman.’ The following analysis conclusively exonerates Cousin Billy (together with Esquire magazine and its publisher, Hearst Publications). Continue reading

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GoldieBlox has settled the suit it commenced (!) against the Beastie Boys regarding use of their song, “Girl”, in its advertising campaign. You’ll recall that GoldieBlox, a toy maker seeking to break down stereotypical societal roles for young girls, had appropriated wholesale all of the music to the song, although it altered the lyrics in significant ways. The video went viral. Yikes!GoldieBlox then filed a preemptive strike lawsuit seeking to have the court determine that its use of the song was within the parameters of the ‘fair use’ exception to copyright infringement.

The Beastie Boys, their label, publisher, producer and others, didn’t quite see it that way and filed counterclaims against GoldieBlox alleging copyright and trademark infringement, unfair competition and misappropriation of publicity rights. Most observers, this one included, believed that GoldieBlox’s use was a clear infringement and that a ‘fair use’ argument would not save it from itself. With the settlement, clearer minds have prevailed. Continue reading

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Lawrence Lessig is a noted Harvard Law professor but is perhaps better known for his work as a co-founder of Creative Commons, the non-profit org that’s devoted to expanding the range of creative works that can be shared and legally built upon by others. It’s fair to say that Lessig knows a little something about the Fair Use doctrine in American copyright law; he’s probably not the guy you want to tangle with on Fair Use issues.

IMG_3076In 2010, Lessig delivered the keynote address to a Creative Commons conference in Korea, discussing the present and future of cultural and technological innovation. As part of his lecture, he presented several amateur music videos, some of which depicted people dancing to the song, “Listzomania” by French rock band Phoenix, to illustrate a phenomenon begun by a YouTube user, called “avoidant consumer,” who posted a video combining scenes from several movies, with “Lisztomania” serving as the soundtrack to the video. Soon, others worldwide picked up on avoidant consumer’s creation and began to create their own versions of the video, with real people playing the roles of the actors in the original movies, and using “Lisztomania” as the soundtrack. Clearly, Lessig purpose in including these clips in his lecture was to illustrate how young people are using videos and other tools to create and communicate via the Internet. Continue reading

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church van gogh1The judicial trend is undeniable, as the scope of the fair use doctrine has been expanded to a point where the exception has almost devoured the rule.  Last year in Cariou v. Prince, the Second Circuit found that Richard Prince had “transformed” 25 out of 30 original Cariou images into something new, and Prince’s work was therefore protected by the fair use exception to copyright infringement. Problem is, the Cariou court didn’t quantify the amount of “transformation” required to obtain fair use protection. Consequently, Cariou’s, and any other photographer’s, right to exploit both his original work and derivative works based upon the original is seriously eroded. The Second Circuit couldn’t determine whether Prince had “transformed” the remaining 5 original Cariou works and remanded the case to the trial court for determination in light of the Circuit’s reasoning as to the other 25 works.

Now, photographers are collectively trying to put the brakes on this train. A number of prominent photo arts groups have joined the Cariou case on behalf of the original artist through an amicus brief regarding the 5 remaining artworks. In a nutshell, the amici assert that, “a fair use defense based on the mere appropriation of copyrighted material, without more, not only harms the market for original works, but also damages the artist’s market for sales of derivative works for items such as postcards, posters, and other public consumables.” In another recent law suit, photographer Lois Greenfield, sued painter Jill Pankey, alleging that Pankey appropriated 33 of Greenfield’s photographic images to create paintings (which Pankey freely admits). Pankey hasn’t yet answered the complaint, but you can bet she’ll assert that her work is subject to the fair use exception. Although clearly derivative of the original Greenfield photos, it appears that Pankey will have a pretty strong fair use “transformation” argument – after all, she has recreated as painted images the original Greenfield photo images, and they differ in several material visual respects. Continue reading