De Minimis Horn Hits Blow Away Copyright Infringement Claim

Pop star Madonna and Shep Pettibone recorded and released the mega-hit dance song Vogue in the early 1990s.  Pettibone recorded the song Love Break in the early 1980s.  VMG Salsoul LLC claims ownership of both the sound recording and musical composition copyrights for Love Break.  VMG sued Madonna, Pettibone, and others, for copyright infringement, claiming that Pettibone “sampled” (physically copied the actual sounds) of horn hits (horn chords) from Love Break in creating Vogue.

Ruling that the horn hits were not original under copyright law and, alternatively, that any horn hit sampling was de minimis, the district court granted summary judgment in favor of Madonna and Pettibone.  The Ninth Circuit held that the de minimis exception to copyright infringement actions applies to all copyright infringement actions, including sound recordings.  In a previous case, Newton v. Diamond, the Ninth Circuit held that the de minimis exception applied to musical composition infringement claims, but did not decide the sound recording question, since that question was not part of that case.  The Ninth Circuit reversed the district court’s award of attorney’s fees to the defendants for abuse of discretion.

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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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It’s a Bead Dog Eat Bead Dog World!

The Fifth Circuit Court of Appeals:  “This case concerns the intersection between intellectual property rights and a Mardi Gras tradition.”  New Orleans Mardi Gras parade onlookers receive strands of beads thrown by parade “krewes.”   The onlookers can create “bead dogs” by twisting the strands of beads into the shape of a dog.  Haydel Enterprises, which also owns a bakery that sells special Mardi Gras cakes, commissioned an artist to design a “Mardi Gras Bead Dog” mascot.  Haydel’s jewelry mascot is made of sterling silver.  Haydel received USPTO trademark registrations for the MARDI GRAS BEAD DOG word mark and for its design mark.  Haydel also received a copyright registration from the Copyright Office for its jewelry design.

Raquel Duarte sells jewelry and accessories through her business, Nola Spice Designs.  Duarte sells a bead dog that she makes from beads and wire, which she learned to do as a child.  Nola Spice Designs received a cease and desist letter from Haydel.  Nola Spice Designs sued Haydel for a declaratory judgment that its actions do not violate trademark law and sought the cancellation of Haydel’s trademark.  Haydel asserted trademark infringement and copyright infringement counterclaims against Nola Spice.  This post focuses on the Fifth Circuit’s copyright infringement discussion.

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No Shortcuts Allowed in Copyright Infringement Case Analysis

Here’s a story of a company founder leaving the company and the geographical area and starting a new company in the same line of business.  It’s not necessarily a story about what not to do.  It’s more a story of the legal issues that can arise when the founder creates copyrighted works, assigns the ownership of the copyrighted works to the first company and then creates similar works for the second company.  Perhaps the founder could have retained the right to make derivative works, instead of assigning all of his copyright rights to the first company. 

David Richison founded the Ernest Group, dba Paycom Payroll, a payroll processing company, in Oklahoma in the 1990s.  He wrote two software programs for use at the company and then assigned his copyright interest in the programs to the Ernest Group.  Richison left Oklahoma and the Ernest Group.  He moved to Maryland and founded Period Financial Corporation, also a payroll processing company.  Richison wrote two more software programs for Period.  One of the programs was based on a program Richison wrote for Paycom. 

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Admitted Copier of Diagram on the Hook for Copyright Infringement

Mary Lippitt has pursued excellence in the organizational management field for many years.  In 1987, she created a diagram “to encapsulate and communicate the results of her research on the failures of complex organizational change initiatives.”  (Opinion pdf page 2).  The diagram provided a visual depiction of her determination of the most basic variables and likely outcomes.  She registered her copyright in the work containing the diagram.  At the time of this litigation, she no longer had a copy of the work she originally registered.  She registered other versions of the diagram as part of other works she created in 2000 and 2003.

Donald W. Warrick teaches in the organizational development field.  He admitted to copying Lippitt’s diagram and even credited her at the bottom of some of his versions of the diagram.  Lippitt sued Warrick for copyright infringement.  Warrick brought a motion for summary judgment, arguing that Lippitt could not prove ownership of a valid copyright, that the diagram was not copyrightable and that Warrick’s diagram did not infringe protectable expression in Lippitt’s diagram.  The district court granted Warrick’ motion for summary judgment without issuing a written opinion.  The Tenth Circuit Court of Appeals reversed, ruling that Lippitt’s expression did not merge with the underlying ideas, that Lippitt selected, coordinated and arranged the elements of her diagram in an original way and that Lippitt did meet the statutory registration requirement.

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No Reasonable Possibility of Access to Copyrighted Home Plans, No Infringement

Building Graphics, Inc. is an architecture firm located in Charlotte, North Carolina.  The firm registered copyrights on some of its home plans between 1993 and 1998.  Lennar Corp. builds homes in eighteen states and planned to enter the Charlotte market in 2001.  Lennar hired Drafting & Design, Inc., an architecture firm, to design homes for Lennar to build in the Charlotte area. 

Building Graphics sued Lennar and Drafting & Design for infringing the copyrights on three of its home plans from the 1990s.  Following discovery, Lennar and Drafting & Design moved for summary judgment.  The district court granted the defendants’ motion, ruling that Building Graphics did not show that it was reasonably possible that Lennar had access to Building Graphics’ copyrighted home plans and that there was no substantial similarity between the two sets of plans.  The Fourth Circuit affirmed the district court’s decision based on Building Graphics’ failure to show a reasonable possibility of Lennar’s access to the copyrighted plans.

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Photo’s Copyright Protection Not Increased by Subsequent Events

Donald Harney, a professional photographer, took the photo of a man with his daughter riding piggyback on his shoulders outside of a church on Palm Sunday on Beacon Hill in Boston.  The man told Harney that his name was Clark Rockefeller and his daughter’s name was Reigh.  The Beacon Hills Times published the photo on the front page.  About a year later, the man in the photo, whose actual name was Christian Karl Gerhartsreiter, abducted the girl, his daughter, during a custodial visit.  The FBI placed Harney’s photo on a “Wanted” poster without Harney’s knowledge or consent.  The girl was returned safely and Gerhartsreiter arrested about a week later.

The story broke that Gerhartsreiter was a professional imposter, having assumed many false identities over the years, and that he was also being investigated in connection with a 20 year old homicide.  Public interest in Gerhartsreiter’s story remained high.  Harney subsequently licensed the photo for publication in numerous media outlets.  Sony Pictures created a made for TV movie about Gerhartsreiter.  Sony recreated Harney’s photo using the actors in its movie, without Harney’s permission.  Harney sued Sony for copyright infringement.  The district court ruled that Sony’s photo was not substantially similar to Harney’s photo, granted Sony’s motion for summary judgment and dismissed the case.  On appeal, the First Circuit Court of Appeals affirmed the district court’s ruling.

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Life is good’s Jake not Substantially Similar to Penmen, Not Infringing

Gary Blehm, a commercial artist and the creator of Penmen characters, sued brothers Albert Jacobs and John Jacobs, creators of Life is good, for copyright infringement.  Blehm’s Penmen are “deceptively-simple looking” figures involved in a wide variety of activities based on Blehm’s life experiences.  Blehm’s Penmen are drawn in black on a white background and “have round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.”  (Opinion pdf pages 2-3).  Between 1989 and 1993, Blehm created 6 posters, each of which contained hundreds of Penmen engaged in a variety of activities.  Blehm’s Penmen posters were sold nationally between 1990 and 2004.  He also created t-shirts, a Penmen comic strip and a Penmen book.

The Jacobses created a leading Life is good character, Jake, in August 1994.  Life is good as a company aspires to “overarching themes of optimism, simplicity, humor, and humility.”  (Opinion pdf page 6).  Blehm claimed that Life is good’s Jake infringed Blehm’s copyrighted Penmen works.  The district court granted Life is good’s motion for summary judgment, ruling that the Jake images are not substantially similar to the legally protectable elements of the Penmen images.  The Tenth Circuit Court of Appeals affirmed, stating “we must be careful not to grant Mr. Blehm a monopoly over all figures featuring black lines representing the human form.  Our analysis cannot be so generous as to sweep in all manner of stick figures as potentially infringing on his works.”  (Opinion pdf page 26).

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Floral Fabric Design Copyright Infringement Case Remanded for Jury Trial by Ninth Circuit

L.A. Printex is a fabric printing company based in Los Angeles.  Ms. Bubbles is an L.A-based apparel wholesaler.  Aeropostale, a mall-based retailer, purchases apparel from Ms. Bubbles and other vendors.  L.A Printex sued Aeropostale and Ms. Bubbles for copyright infringement when it discovered that Aeropostale was selling shirts, under the Aeropostale trademark, displaying a design similar to L.A. Printex’s C30020 floral design.  Aeropostale ordered the shirts from Ms. Bubbles.

The district court granted the defendants’ motion for summary judgment, finding that there was no issue for trial on whether defendants had access to L.A. Printex’s design and whether the two designs were substantially similar.  L.A. Printex appealed and the Ninth Circuit held that L.A. Printex raised a genuine dispute of material fact on both access and substantial similarity.

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“Stealing Idea” Suit Dismissed on Summary Judgment

Frank Coble accused Anita Renfroe of stealing his idea for a song and filed suit against her, alleging copyright infringement and the trademark law claims of unfair competition and false designation of origin.  The district court granted Renfroe’s motion for summary judgment on both the copyright and trademark claims.

Facts.  Coble and Renfroe are both comedians.  Coble performs standup comedy and is also a full time artist.  Renfroe is a full time professional singer, songwriter and comedian whose comedy is aimed at mothers.  This brand of humor has been her forte since 1998.

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