Bit Parts

The U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed all but two affirmative defenses raised by a third-party defendant in a suit over the alleged unauthorized rental and sale of DVDs of films from India. Yash Raj Films (USA) Inc. v. Atlantic Video, 03 C 7069. The defendant in the case filed a third-party complaint against his distributor. The district court denied the defendant's motion to strike the distributor's third-party affirmative defenses of failure to mitigate damages and of set off. The court noted that it was too early in the case for the distributor to plead the affirmative defenses with particularity. However, the court dismissed with prejudice the affirmative defenses of intentional conduct and apportionment of fault as being both legal conclusions and defenses that needn't be pleaded to be proved. Several additional affirmative defenses for which the court now wanted more specificity were dismissed without prejudice.

The U.S. Supreme Court denied a petition for writ of certiorari filed by a producer seeking to challenge a ruling by the U.S. Court of Appeals for the Ninth Circuit over an Elvis Presley documentary. Passport Video v. Elvis Presley Enterprises Inc., 03-1547. The Ninth Circuit held that the producer's unlicensed use of video clips, photographs and music in the 16-hour “The Definitive Elvis” was likely not a fair use, so that the sale of the documentary should be enjoined.

The U.S. Court of Appeals for the Second Circuit has affirmed a district court ruling that the airing of an unlicensed, several-seconds clip from a public access TV show to introduce a segment on Comedy Central's “The Daily Show” constituted fair use. Kane v. Comedy Partners, 03-9136. The Second Circuit noted in its unpublished opinion that “the district court accurately applied well-established Supreme Court and Second Circuit law in granting summary judgment to the defendants.” The lower court had also found no trademark infringement under the Lanham or violation of Sec. 51 of the New York Civil Rights Law, the state's right of privacy statute.

The U.S. Court of Appeals for the Second Circuit has certified several questions to the New York Court of Appeals in a case over the U.S. release of digital copies of classical recordings, preserved on shellac from the 1930s that had entered the public domain in Britain. A Manhattan federal district court had dismissed the suit. The certified questions are: whether a common-law copyright is available to a work in the public domain in its country of creation; whether New York would import elements of unfair competition into a cause of action for infringement of a common-law copyright; and whether a “new product” analysis would defeat a claim for common-law copyright infringement under the circumstances of the case. Capitol Records v. Naxos of America Inc., 03-7859.

The U.S. District Court for the Southern District of New York has denied both plaintiffs' and defendants' motions for summary judgment in a copyright infringement suit over the release on an album by the group Proyecto Uno of the plaintiffs' songs “We Should Be Making Love” and “Caught in a Trap.” James v. Universal Motown Records Inc., 03 Civ. 4487 (LAK). The district court found affidavits submitted by both sides to be insufficient. In the case of Universal's affidavit from a vice president of legal and business affairs of Universal Music Latin America, the court found a failure to “indicate where his personal knowledge leaves off and his impressions based on some undefined 'involvement … and/or' his review of unspecified files begins.” The court found the plaintiffs' affidavits failed to establish that there were no disputed issues of material fact.

The Supreme Court of New York, Appellate Division, First Department, granted a motion for summary judgment by rental-company defendants in a suit by a crew member injured while working on the set of a TV show. Costello v. Panavision of New York, 3778. The appellate court noted that the plaintiff “invoked the doctrine of res ipsa loquitur, which would require, inter alia, proof that the accident was caused by an agency or instrumentality within the defendants' exclusive control … Here, the instrumentality was in the exclusive control of plaintiff's employer at the time of the accident, thereby precluding plaintiff from availing himself of the doctrine of res ipsa loquitur against the Panavision defendants.” The court upheld a denial of a defense motion for summary judgment by show producer Universal Television Law and Order.