Bit Parts

No Summary Judgment for Fair Use Issue in Takedown Notice

The U.S. District Court for the Northern District of California refused to grant summary judgment to either party in a suit filed by Stephanie Lenz alleging Universal Music lacked a good faith belief when it sent a takedown notice to YouTube complaining that a video Lenz posted of her son dancing to the Prince composition “Let's Go Crazy” was an unauthorized use of the song copyright. Lenz v. Universal Music Corp., 5:07-cv-03783. Lenz claims the takedown notice amounted to a “material misrepresentation” under '512(f) of the Digital Millennium Copyright Act, because Universal didn't engage in a fair-use analysis before writing YouTube. District Judge Jeremy Fogel noted: “While it agrees that requiring a copyright holder to engage in a full-blown fair use analysis prior to sending a DMCA takedown notice would be inconsistent with the remedial purposes of the statute, ' a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not 'authorized by law.'” But Judge Fogel added: “Lenz presents substantial evidence that Universal did not consider explicitly whether her video made fair use of Prince's song before it sent the Takedown Notice.”

Episode Viewability on Website Doesn't Establish Personal Jurisdiction

The U.S. District Court for the Eastern District of Louisiana decided that a Syfy Channel website on which visitors can view TV episodes didn't establish specific personal jurisdiction over NBCUniversal and Syfy. Asevedo v. NBCUniversal Media LLC, 12-2005. Visual artist Preston Asevedo filed a copyright infringement suit alleging that his two-dimensional creation “Comedy Tragedy Skulls” has been displayed in various ways in the reality TV show Dream Machines, about a custom-car body shop in Florida. But District Judge Lance M. Africk ruled that www.syfy.com/dreammachines was a “passive” website. Judge Africk explained: “Although Asevedo contends, vaguely, in his memoranda that '[d]efendants do sell other products on their sites, including T-shirts, DVDs, and games' in an interactive 'virtual store,' he never contends that NBCUniversal or Syfy operate that 'virtual store' on the Syfy website. Rather, the allegations in the complaint state that the virtual store exists within the [Dream Machines] stars Parker Brothers' website '.” But the district judge let the case proceed, noting: “Discovery may reveal whether NBCUniversal and Syfy have sufficient contacts with the forum as the alleged producers and/or broadcasters [on TV] of Dream Machines to support a finding of personal jurisdiction.”

Taking Issue with Second Circuit Substantial Similarity Test

The U.S. District Court for the Southern District of New York ruled that the TV show Touch isn't substantially similar to the plaintiff Everette Hallford's screenplay Prodigy. Hallford v. Fox Entertainment Group Inc., 12 Civ. 1806. The TV show is about an autistic child who can predict the future. The screenplay is about a journalist and an autistic child who together solve a mystery. Granting Fox's motion to dismiss, District Judge William H. Pauley III found the two works were similar only at “the broadest level.” But in reaching the conclusion, District Judge Pauley complained of the way the substantial similarity test is applied within parent U.S. Court of Appeals for the Second Circuit: “It is hard to discern the difference between the legal analysis a district judge undertakes at the motion to dismiss stage when the works in question are attached, and the factual analysis the same judge undertakes during a bench trial,” Judge Pauley complained. “The uncertainty of this distinction has the potential to remove questions of fact from a jury, authorize district judges to resolve such questions, and empower appellate judges to review what are essentially factual determinations de novo.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.

No Summary Judgment for Fair Use Issue in Takedown Notice

The U.S. District Court for the Northern District of California refused to grant summary judgment to either party in a suit filed by Stephanie Lenz alleging Universal Music lacked a good faith belief when it sent a takedown notice to YouTube complaining that a video Lenz posted of her son dancing to the Prince composition “Let's Go Crazy” was an unauthorized use of the song copyright. Lenz v. Universal Music Corp., 5:07-cv-03783. Lenz claims the takedown notice amounted to a “material misrepresentation” under '512(f) of the Digital Millennium Copyright Act, because Universal didn't engage in a fair-use analysis before writing YouTube. District Judge Jeremy Fogel noted: “While it agrees that requiring a copyright holder to engage in a full-blown fair use analysis prior to sending a DMCA takedown notice would be inconsistent with the remedial purposes of the statute, ' a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not 'authorized by law.'” But Judge Fogel added: “Lenz presents substantial evidence that Universal did not consider explicitly whether her video made fair use of Prince's song before it sent the Takedown Notice.”

Episode Viewability on Website Doesn't Establish Personal Jurisdiction

The U.S. District Court for the Eastern District of Louisiana decided that a Syfy Channel website on which visitors can view TV episodes didn't establish specific personal jurisdiction over NBCUniversal and Syfy. Asevedo v. NBCUniversal Media LLC, 12-2005. Visual artist Preston Asevedo filed a copyright infringement suit alleging that his two-dimensional creation “Comedy Tragedy Skulls” has been displayed in various ways in the reality TV show Dream Machines, about a custom-car body shop in Florida. But District Judge Lance M. Africk ruled that www.syfy.com/dreammachines was a “passive” website. Judge Africk explained: “Although Asevedo contends, vaguely, in his memoranda that '[d]efendants do sell other products on their sites, including T-shirts, DVDs, and games' in an interactive 'virtual store,' he never contends that NBCUniversal or Syfy operate that 'virtual store' on the Syfy website. Rather, the allegations in the complaint state that the virtual store exists within the [Dream Machines] stars Parker Brothers' website '.” But the district judge let the case proceed, noting: “Discovery may reveal whether NBCUniversal and Syfy have sufficient contacts with the forum as the alleged producers and/or broadcasters [on TV] of Dream Machines to support a finding of personal jurisdiction.”

Taking Issue with Second Circuit Substantial Similarity Test

The U.S. District Court for the Southern District of New York ruled that the TV show Touch isn't substantially similar to the plaintiff Everette Hallford's screenplay Prodigy. Hallford v. Fox Entertainment Group Inc., 12 Civ. 1806. The TV show is about an autistic child who can predict the future. The screenplay is about a journalist and an autistic child who together solve a mystery. Granting Fox's motion to dismiss, District Judge William H. Pauley III found the two works were similar only at “the broadest level.” But in reaching the conclusion, District Judge Pauley complained of the way the substantial similarity test is applied within parent U.S. Court of Appeals for the Second Circuit: “It is hard to discern the difference between the legal analysis a district judge undertakes at the motion to dismiss stage when the works in question are attached, and the factual analysis the same judge undertakes during a bench trial,” Judge Pauley complained. “The uncertainty of this distinction has the potential to remove questions of fact from a jury, authorize district judges to resolve such questions, and empower appellate judges to review what are essentially factual determinations de novo.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.