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Judges Are Not Like Pigs: Three Lessons for Songwriters from ‘Next Top Model’ Lawsuit
September 29, 2013
In September 2012, R&B singer Delray Richardson p/k/a Delray d/b/a Del Funk Music and Sterling A. Snyder d/b/a Zion Records, both pro se, filed a copyright infringement action against CBS Studios, Inc. in California’s Central District seeking an injunction and damages for the use of Plaintiffs’ songs in several episodes of America’s Next Top Model (“ANTM”). The songs at issue were written or owned by Plaintiffs and a third writer, Jean-Yves Ducornet (“Jeeve”), who composed the instrumental portions of the songs. Various instrumental snippets from Plaintiffs’ songs were used in several ANTM episodes. CBS contended that it obtained a valid, non-exclusive license to use the songs from Jeeve’s publishing administrator, PEN Music Group, which had the right to grant non-exclusive licenses to third-parties for any or all of Jeeve’s works.
Plaintiffs’ claims were dismissed on September 25, 2013 when the Court found that Plaintiffs did “not come close to meeting their burden to produce admissible evidence to avoid summary judgment.” Among other things, Plaintiffs failed to produce their copyrighted songs, or the episodes of ANTM, which deprived the Court of the opportunity to engage in a side-by-side comparison of the works.
Judge Audrey Collins’ sixteen page orders provides valuable lessons that might prevent songwriters from becoming copyright plaintiffs.
Lesson #1 – Songwriters Must Understand the Implications of Creating A Joint Work.
The Copyright Act of 1976 defines a “joint work” as a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Courts have consistently held that were one party contributes the lyrics and another party contributes the instrumental music, each writer has joint ownership of the entire song. In other words, the lyricist’s ownership in the copyright of the final song is not just limited to the lyrics. Nor is the instrumental composer’s ownership confined to just the instrumental portion of the song. Each co-writer owns an “undivided interest” in the entire song.
Lesson #2 – Co-Writers Should Enter Into Written Agreements Addressing Their Rights and Obligations
Co-writers often complete split sheets setting forth the ownership percentages of their songs, but they should enter into more extensive written agreements addressing the granting of licenses, joint authorship, publishing administration, copyright registration responsibilities, etc. In the absence of an agreement to the contrary, each co-writer of jointly-authored song has an independent right to grant non-exclusive licenses for the use of the songs.
Lesson #3 – Plaintiffs Must Clearly Present Sufficient Evidence of Copyright Infringement
In Richardson, the Court considered Plaintiffs’ papers a “jumbled mish-mash” of largely irrelevant and inadmissible statements and documents. To avoid dismissal, Plaintiffs must ensure that they not only gather sufficient admissible evidence to support their claims, including the infringed and infringing works, but the evidence must be clearly presented to the court because judges will not comb the record looking for evidence to support a plaintiff’s claims. As Judge Collins put it, “[j]udges are not like pigs, hunting for truffles buried in briefs.”