BLURRED LINES:  SOMEWHERE BETWEEN FOGERTY V. FANTASY AND HARRISONGS V. BRIGHT TUNES 

The recent declaratory judgment lawsuit filed by Robin Thicke, Pharrell, and Clifford Harris, Jr. (collectively “Plaintiffs”) raises the question about how much “inspiration” does it take to be copyright infringement.    The Plaintiff are seeking declaratory judgment that their song “Blurred Lines” does not infringe on the song “Sexy Ways” by the Funkadelics (owned by Bridgeport Music, Inc.) nor “Got To Give It Up” by Marvin Gaye (owned by heirs of Marvin Gaye) (collectively “Defendants”).  See Complaint – Central District of California – 13CV6004(JAK)(AGRx).

Such infringement lawsuits over popular music are not uncommon.     In this particular instance, the Plaintiffs admit they were “inspired” by the Marvin Gaye song.   See http://www.nytimes.com/2013/08/17/business/media/songwriters-sue-to-defend-a-summer-hit.html?partner=rss&emc=rss&_r=0.   Pharrell also acknowledged Marvin Gaye’s influence.  See http://articles.washingtonpost.com/2013-09-13/national/42019651_1_pharrell-marvin-gaye-thursday-night.

In the Fogerty v. Fantasy case, Fantasy Records sued John Fogerty who was a former member of the band, Credence Clearwater Revival.   Fantasy claimed that Fogerty’s song “The Old Man Down the Road” infringed on the CCR song “Run Through The Jungle” owned by Fantasy.  That case was decided by a jury but clearly the lyrics were different and while there was a similar ‘swamp rock’ sound, the composition was not the same.  In that case the jury found no infringement by Fogerty.  (Like many other copyright infringement decisions involving famous songs, the Fogerty lawsuit has an interesting backstory.  See http://www.theguardian.com/culture/2000/jul/11/artsfeatures3.

The Plaintiffs are likely to rely on a similar argument in the Blurred Lines case.   They will argue that “Sexy Ways” and “Got To Give It Up” may have similar feel or thematic sound but the Defendants do not have a right to a genre of music.  This is likely to fit well with the arguments in Fogerty and the “swamp rock” style of music. 

George Clinton of The Funkadelics tweeted that he does not believe that “Sexy Ways” is similar to “Blurred Lines.”  See http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

On the other hand, there is the case of George Harrison’s song “My Sweet Lord” infringing The Chiffon’s hit song “He’s So Fine” which was owned by Bright Tunes.  In that case, the Court found that the ubiquitous “He’s So Fine” was subconsciously copied given the similar nature of the works.  (The Harrison case also has a fascinating background.  See http://todaynewsgazette.com/george-harrison-my-sweet-lord-lawsuit/.)

Do you think that “Blurred Lines” infringes “Sexy Ways” or “Got To Give It Up?”

Builder Beware: Copyright Infringement for Architectural Designs

An often overlooked function of the Copyright Act is the protection it provides for architectural works.  Recently, however, the Eastern District of New York was called upon to decide a copyright infringement claim involving architectural designs for residential homes.  Axelrod & Cerveny v. T. & S. Builders Inc., 2013 U.S. Dist. LEXIS 63206 (E.D.N.Y. May 2, 2013).  In that case, Plaintiffs owned valid copyrights in an architectural design entitled “Georgetown II,” as well as the derivative work referred to as “Home Design 2434.”  Plaintiffs alleged Defendants infringed by designing, marketing, constructing and selling four homes which Defendants referred to as the “Franklin” model. 

Defendants distributed sales brochures which included a copy of the cover of Plaintiffs’ sales brochure, depicting the exterior of the Georgetown II model.  Another of Defendant’s brochures for the Franklin model contained an exact copy of the floor plan for the Georgetown II.  Yet another of Defendants’ brochures contained a copy of the floor plan for the Georgetown II with only minor variations, such as differing placement of the bathroom on the first floor and the number of walk in closets on the second floor.  In several instances, Defendant’s brochures did not even bother to remove the “Georgetown II” designations on its Franklin brochures.  Although Plaintiffs had their own sales brochures for the Georgetown II, these brochures were not copyrighted. 

With respect to the homes themselves, the contracts for sale for three of the four homes in question included the two-page floor plan for the Georgetown II, copied directly from Plaintiffs’ brochure.  Defendants claimed that as constructed, the four homes in question exhibited more than 35 modifications from the original Georgetown II floor plan as a result of customizations, and that therefore all of the homes were substantially different from each other. 

In deciding whether to grant Plaintiffs’ motion for partial summary judgment the court grappled with two issues:  1) Whether or not Defendants’ copying of the exterior of the Georgetown II infringed on Plaintiffs’ copyright if there were substantial modifications to the interior of Defendants’ Franklin model, and 2) whether the use of the Georgetown II brochure in Defendants’ brochure is an infringement.

The court examined the precedent of district court outside the Second Circuit to determine that infringement can be established based upon copying of the floor plans, the exterior or both.   The Court analyzed the substantial similarity by evaluating the “total concept and feel” of the works under the ordinary observer test.  The plans or structures do not have to be exact but merely show that a substantial part was copied.  Thus, for an architectural work it is what’s on the inside or what’s on the outside that counts; it need not be both for the “total concept and feel.”  The Court granted summary judgment to Plaintiffs for exterior copying by Defendants.

The Court also granted summary judgment for Plaintiffs based upon Defendants’ copying of the floor plans from Plaintiffs’ Georgetown II brochure.    While recognizing that there was no copyright registration for the Plaintiffs’ brochure, the court found that the brochure did state that the floor plans themselves were copyrighted and cited a list of cases where the copyright protection in the floor plans extended to unregistered sales brochures.  The Court distinguished between the final construction and the brochures stating, “…[d]efendants have failed to explain why purported modifications made to the designs during the homes’ construction absolve defendants of liability for improperly using plaintiffs’ copyrighted floor plans in the sales contracts…” and brochures.   

Ray Charles Foundation told to "Hit the Road Jack."

In The Ray Charles Foundation v. Robinson (C.D. Cal. 12-cv-2725), the court takes an interesting side-step around what will undoubtedly be the hottest copyright issue in the very near future – termination.  The musician Ray Charles composed and recorded numerous musical works which were copyrighted.  From the facts listed in the case, it is an open question about whether the works were works made for hire with Atlantic (sound recording) and Progressive (composition).    Charles negotiated new terms (including royalties) for these works with the record companies.

Prior to Charles’s death, he made an agreement with his 12 children which stated:

My father, Ray Charles Robinson, has told me that he will set up an irrevocable trust for my benefit, to be funded with $500,000.  This gift is my entire inheritance from him and I understand that I will not inherit anything further under my father’s estate plan and that I am waiving any right to make a claim against his estate. 

Upon his death, the rights in his works were left to The Ray Charles Foundation.  In 2010, seven of Charles’s children served copyright termination notices on parties who had interests in Charles’s works, including Progressive. 

The Ray Charles Foundation sued the children claiming a breach of contract and seeking declaratory judgment on a variety of grounds.  The Foundation alleged that Charles’s works were works made for hire and thus not subject to the termination provisions of the Copyright Act.  17 U.S.C. Section 203 (thus maintaining the Foundation’s continued royalties). 

However, the Court was unsympathetic to The Foundation’s claims.  First, it found that the termination notices are not claims against the Charles estate.  The estate was closed in 2006, 4 years before the termination notices were served in 2010.  Second, the Foundation’s claim that Charles’s works were works made for hire would mean that the works were never in the estate anyway.  Third, even if the works were not works made for hire, the Court cannot interpret Charles’s agreement with his children as limiting a termination right under the Copyright Act.  The termination rights are unalienable notwithstanding any agreement to the contrary.  17 U.S.C. Section 304(c)(5).   The Court finds that the language would be an agreement to the contrary and is not able to prevent the right to terminate.  The Court goes on to award attorney’s fees to the Defendant under California’s Anti-SLAPP statute. 

The Court does not stop there.  It found that The Foundation does not even have standing to bring the lawsuit.  The Foundation is not the owner of Charles’s works if they are a work made for hire. (Progressive and/or Atlantic would be.)  The Court further found that The Foundation is not within the zone of interests protected by the statute invoked in the lawsuit.  The statutes (Sections 203 and 304) provide for authors, statutory heirs owning a termination interest, and grantees of transferees and their successors as those within the zone of interests.

While beneficial owners may have the right to sue for infringement under Section 501(b), no similar provision exists under Section 203 or 304 for the right to terminate.  Thus, the Court also rejects The Foundation’s claim that they have standing as a beneficial owner.  Finally, the Court rejects The Foundation’s third-party standing argument because it cannot show a close relationship with Progressive or its successors-in-interest. 

Arbitron sues Cleveland television station

Plaintiff Arbitron is an audience measurement firm which provides ratings information for such media as radio and television.  Plaintiff prepares different reports for different media markets including Cleveland, Ohio.    Arbitron licenses its reports to its customers and owns copyright registrations in its Cleveland Radio Market Reports.    Defendant WKYC is a television station in Cleveland.  Plaintiff alleges that part of WKYC’s promotional media kit presentation to potential advertisers included a list of demographic ratings from Arbitron reports.  (In one of the footnotes in the media kit – WKYC lists the Arbitron Reports as its source for the information.)  Arbitron alleges that WKYC is not a licensee of Arbitron.  The list containing the information from the reports is alleged to have been distributed in over 40 media kits.

Defendant has not yet answered. 

Prince Georges County Public School system considers making student's works the property of the Board of Education

A proposal under consideration by Prince Georges County would make a student's works for the public schools in Prince Georges County the property of the Board of Education, even if done on the student's own time and with use of their own materials.  The law does not work that way. 

While a work made for hire may apply to the teachers and educators employed by the County public school system, students are not employees of the public school system. 

It is possible that the county could obtain rights to a student's work through a license or assignment.  However, the better question, would be why would any student agree to such an arrangement? 

http://www.washingtonpost.com/local/education/prince-georges-considers-copyright-policy-that-takes-ownership-of-students-work/2013/02/02/dc592dea-6b08-11e2-ada3-d86a4806d5ee_story_1.html

The lack of understanding of copyright law is alarming.  But on another level beyond the complexities of the law, there is a moral problem with the county's proposal.  What possible reason would the county school system have to believe they own the rights to a student's work?