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Last year, in a lawsuit lodged against Vince McMahon‘s World Wresting Entertainment, a man by the name of Papa Berg called himself the “pioneer” of wrestler entrance music and alleged that the WWE had misappropriated his songs, caused royalties to be misdirected and interfered with a video game deal.
In reaction, the WWE attempted to stop Berg from getting into the legal ring in a Texas federal court by disputing the jurisdiction, by saying Berg’s lawsuit came too late and by objecting that Berg hadn’t been specific enough to support his claims.
On Wednesday, a Texas judge trimmed Berg’s lawsuit but allowed the composer to advance forward in his attempts to pin the WWE for alleged copyright infringement.
According to Berg’s allegations, he wrote the “hit” song, “Badstreet USA,” used by the Fabulous Freebirds, as well as “Man Called Sting,” “Simply Ravishing,” “The Natural” and “Steineeized.”
Berg says he was contacted by video game producer THQ, which wanted to use “Badstreet USA” for the game, Legends of Wrestlemania, but before any deal was reached, THQ discovered that records showed the song was owned by the WWE. So Berg investigated and found out the song “had been improperly and erroneously registered” by the WWE, “resulting in the royalties being redirected to” the professional wrestling company.
THQ ended up not using the song, and Berg says his investigation “revealed a systematic pattern of errors and omissions by WWE personnel that effectively misappropriated Papa’s musical works” on DVDs, ringtones, and its cable channel.
In her ruling on Wednesday, U.S. District Judge Jane Boyle focuses in large part on jurisdiction. The WWE preferred that the lawsuit be tried — if at all — in Connecticut, where the company is based, and the question became whether by selling its products and broadcasting its television content in Texas, the pro wrestling organization was susceptible to a lawsuit there. About 1 percent, or $5.1 million, of the WWE’s net revenue was attributable to commerce in Texas, and the judge concludes that the “WWE knowingly benefitted from Texas’ market for WWE’s products and therefore it is only fitting that WWE be amenable to suit in Texas.”
Judge Boyle also will allow Berg’s lawsuit to continue for direct copyright infringement — although not contributory copyright infringement — finding that Berg has pled enough allegations at this stage. The plaintiff named his protected works, alleged registration, cited WWE’s access and made sufficient claims about the WWE’s use of substantially similar copies of his recordings including using “Badstreet USA” to promote two DVDs and playing the songs on cable TV.
In Berg’s lawsuit, the composer also attempted all sorts of state-based claims such as tortious interference and civil conspiracy. The WWE objected by saying that many of the claims were preempted by Berg’s copyright claims and here, Judge Boyle grants a motion to dismiss in part.
The lawsuit will likely now proceed to discovery, then the summary judgment phase, and finally a possible trial where Berg will have to demonstrate that he’s as good with a finishing move as he is with an entrance.
E-mail: email@example.com; Twitter: @eriqgardner
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