Lack of Valid Copyright Throws Out “Who’s on First?” Copyright Claim

Abbott and Costello’s successors-in-interest sued the author and producers of the play Hand to God for copyright infringement. The play used a little over a minute of the Abbott and Costello “Who’s on First?” routine almost verbatim without authorization. The district court ruled that the use of the “Who’s on First?” routine in the play Hand to God was a fair use and not copyright infringement. My post Who’s on First? Copyright Infringement Question as Tangled as the Routine discusses the district court’s ruling.

On appeal, the Second Circuit held that the district court erred in ruling that the use of the routine in the play was a fair use. Nevertheless, the Second Circuit upheld the district court’s ruling in favor of the play’s author and producers on the alternative ground that Abbott and Costello’s successors-in-interest failed to plead a valid copyright interest. Since the play’s creators did not cross appeal the district court’s ruling that the Abbott and Costello successors-in-interest owned a valid copyright, the only issue on appeal was whether the district court correctly ruled that the use of the routine in the play was a fair use. The Second Circuit was obligated to rule on the fair use question before considering whether to uphold the district court’s ruling on an alternative theory. Had the Second Circuit affirmed the district court’s fair use analysis, the Second Circuit would not have considered the copyright validity question.

The Second Circuit did not discuss whether it was even appropriate for the district court to consider fair use on a Rule 12(b)(6) motion to dismiss for failure to state a claim. Fair use is an affirmative defense and is the defendant’s burden to prove, not the plaintiff’s. Fair use should not be decided on a motion to dismiss the plaintiff’s complaint for failure to state a claim. 

Continue reading “Lack of Valid Copyright Throws Out “Who’s on First?” Copyright Claim”

Tavern Challenges BMI’s Chain of Title for Songs

Evie’s Tavern Ellenton, Inc. and owner Michael Evanoff (Evie’s Tavern) were sued by Broadcast Music, Inc. (BMI), The Bernard Edwards Company, LLC, R-Key Darkus Publishing, Orbi-Lee Publishing and other plaintiffs for copyright infringement.  The plaintiffs alleged that Evie’s Tavern violated their ownership rights by publicly performing copyrighted musical compositions without a license.  Instead of taking the plaintiffs’ ownership claims at face value, Evie’s Tavern challenged plaintiffs’ ownership claims.  Although Evie’s Tavern lost, this case illustrates how tenuous copyright ownership claims for musical works can be.

Continue reading “Tavern Challenges BMI’s Chain of Title for Songs”

Alleged Infringing Downloaders Call Out Movie Owner’s Infringing Activities

Riding Films, Inc. claims to own a copyright in the movie “Dawn Ride.”  Riding Films sued unnamed “John Doe” defendants in at least fifteen separate lawsuits throughout the country, alleging that the John Doe defendants copied and distributed the film without authorization.  Specifically, Riding Films alleges that the defendants downloaded the film using the BitTorrent protocol, thereby copying and distributing without authorization.  In a case before the Southern District of Ohio, some of the individually name defendants alleged that Riding Films’ copyright is invalid and filed a declaratory judgment counterclaim.

Riding Films filed a motion to dismiss the defendants’ declaratory judgment counterclaim for failure to state a claim upon which relief can be granted.  The defendants alleged that Dawn Ride appears to be a remake of an earlier film, that Riding Films did not obtain rights to the earlier version, that Melange Pictures, LLC owns the copyrights in the earlier version and that Melange Pictures is not affiliated with Riding Films.  The district court agreed with the defendants and denied Riding Films’ motion to dismiss the declaratory judgment counterclaim.

Continue reading “Alleged Infringing Downloaders Call Out Movie Owner’s Infringing Activities”

Distribution Infringement Claims Sink With the Time-Barred Ownership Claims Ship

In a case of first impression in this circuit, the Ninth Circuit Court of Appeals differentiated between the two kinds of copyright infringement claims:  ordinary copyright infringement (copying, preparing derivative works, distributing, publicly performing or publicly displaying without the owner’s permission) and copyright infringement in which the dispute is about ownership.  Copyright infringement claims involve establishing 1) that the plaintiff is the owner of a valid copyright and 2) that the defendant copied the original elements of the plaintiff’s work.  Seven Arts Filmed Entertainment sought to establish itself as the copyright owner of the films Rules of Engagement, An American Rhapsody, and Who is Cletis Tout? and sued Paramount Pictures for allegedly distributing the films without a license.  Paramount argued that Seven Arts’ infringement claims were barred by the statute of limitations.  The Ninth Circuit viewed this case as an ownership dispute.

Section 507(b) of the Copyright Act of 1976 requires civil copyright actions to be “commenced within three years after the claim accrued.”  Most copyright infringement lawsuits focus on whether the defendant copied the plaintiff’s work.  When copying is the issue, infringement claims for copying that occurs more than three years before the lawsuit was filed are barred, i.e., prohibited, by the statute of limitations.  But the defendant can still be held liable for copying that occurs between the three year statute of limitations date and the present.  Each new infringing act creates a new claim for infringement.  (However, damages are determined per work infringed, not by the number of infringing acts.)  The issue for the Ninth Circuit to decide was “whether a claim for copyright infringement in which ownership is the disputed issue is time-barred if a freestanding ownership claim would be barred.”  (Opinion pdf page 9).  Could Paramount be held liable for continuing infringing acts if the statute of limitations prevented Seven Arts from establishing copyright ownership ?

Continue reading “Distribution Infringement Claims Sink With the Time-Barred Ownership Claims Ship”