It’s All About the Chorus in Usher and Bieber Copyright Infringement Case

Musician Devin Copeland and his songwriting partner, Mareio Overton, wrote a song entitled “Somebody to Love” in 2008 and registered the copyright for the song later that year.  Usher Raymond IV and his manager, Jonetta Patton, listened to Copeland’s album, including “Somebody to Love,” in late 2009.  During a phone conversation with Copeland, Patton expressed interest in Copeland’s music and having him join Usher on tour.  Nothing came of that.  A few months later, Usher recorded and posted on YouTube a song entitled “Somebody to Love.”  Usher’s protégé, Justin Bieber, also recorded a song entitled “Somebody to Love,” releasing his version in the spring of 2010. 

Copeland sued Usher and Bieber for copyright infringement, alleging access to Copeland’s work and a striking resemblance to Copeland’s work.  Bieber and Usher filed a Rule 12(b)(6) motion to dismiss Copeland’s complaint, arguing that no reasonable jury could find that the Copeland song and the Usher and Bieber songs were substantially similar.  The district court agreed with Usher and Bieber and dismissed Copeland’s complaint.  The Fourth Circuit Court of Appeals vacated the district court’s ruling and remanded the case.

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Do Not Call Keeps Ringing

The Telephone Consumer Protection Act (TCPA) prohibits the initiation of “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party.” 47 U.S.C. § 227(b)(1)(B).  Ron and Dorit Golan were registered on both federal and Missouri State do not call lists.  The Golans received two unsolicited, prerecorded messages about the movie Last Ounce of Courage on their home phone line in September 2012.  The Golans did not answer the call, so they received a truncated version of the message and not the longer version of the message that was played to people who answered the call.  erThe film’s owners arranged for a telemarketing campaign, in which 4 million residential phone lines were called.  The Golans brought a class action lawsuit against those involved in the telemarketing campaign, from Veritas Entertainment, LLC and Veritas Management, LLC, (Veritas), which owned interests in the film, to Mike Huckabee, the “celebrity voice” on the recorded message.

The district court ruled 1) the Golans did not suffer an injury in fact because the messages they received did not contain an advertisement or solicitation in violation of the TCPA and 2) that because the Golans received the shorter version of the recorded message, their claims were not typical of the putative class members and they were therefore inadequate class representatives.  The district court dismissed the case.  The Eighth Circuit reversed and remanded.

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Stomping Out the Copyright Registration Challenge Varmint

Last week I gave a copyright registration presentation at the King County Bar Association Intellectual Property Section meeting:  Copyright Registration – Simple Forms Conceal Complex Legal Issues.

Copyright registration forms are designed so that they can be filled out without the help of an attorney.  We’re all adept at filling out forms.  But in the copyright registration context, I believe it’s important to take a long range view of the information we insert into the boxes.  Take authorship, for example.  If there’s a single author, authorship is not an issue.  But what happens when there are multiple authors, such as when an independent contractor creates code for a startup, but later becomes an employee of the startup?  Absent a written agreement addressing the issue, if the work being registered includes content from both the independent contractor period and the employee period, the person who wrote the code is a co-author with the startup.

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Posting Facebook Threats Criminal Violation Requires Awareness of Wrongdoing

Anthony Douglas Elonis tested the limits of what content he could lawfully post on Facebook.  He was convicted for threatening patrons and employees of the amusement park where he was formerly employed, his estranged wife, police officers, a kindergarten class and an FBI agent through his violent music inspired Facebook posts.  18 U.S.C. §875(c) makes it a federal crime to transmit communications containing threats to injure another person through interstate commerce.  A Facebook post is a communication made through interstate commerce, an assumption that was not at issue in this case.

The district court allowed a jury instruction that

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

The Third Circuit Court of Appeals agreed with the jury instruction and upheld the conviction.

What, if any, mental state must a defendant have to be convicted for making threats under 875(c)?  That was the question before the U.S. Supreme Court.

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