3:08pm PT by Eriq Gardner
Hollywood Docket: 'Happy Birthday' Lawsuit; 'Hogan's Heroes' Settlement; Apple iPod Trial
The filmmakers challenging the validity of the "Happy Birthday" copyright are about to get a key ruling.
The lawsuit against Warner/Chappell Music was brought in June 2013 and presented the story of how a song composed in the late 19th century had become the most popular song in the English language while challenging why the old song wasn't in the public domain. Now, after almost 18 months of fighting over procedural issues and engaging in discovery, both sides have come forward with motions for summary judgment.
Here's the 61-page filing that goes through both parties' core arguments on why "Happy Birthday" is or isn't copyrighted. At stake is whether film and TV producers — plus others — will continue to have to pay license fees to use the song.
According to the plaintiffs, "Happy Birthday" was not copyrightable in 1935 because the song had been published, publicly performed and sung millions of times for more than three decades before registrations were finally made. The copyright challengers have doubts about the official story of the origins of the song, the way it was registered, whether the registration covers the song lyrics and whether the song was rightfully acquired by Warner/Chappell.
Warner/Chappell counters that there's real evidence that Mildred Hill wrote the song and shrug off any suggestion that Clayton Summy, who bought rights and made the copyright registration, did so fraudulently. The music publisher assert that the plaintiffs lack standing to challenge the registration as faulty and are misreading the older standards by which works fall into the public domain for publishing a work without a copyright notice. The publisher also says the registration covered "words" and "text," which means lyrics too. And the publisher says its chain of title is backed by undisputed evidence.
In other entertainment law news:
- In a development that could pave the way for a feature film version of Hogan's Heroes, Rysher Entertainment and the Writers Guild of America have resolved a dispute over who owns "separated rights" to the 1960s TV show about a German prisoner-of-war camp during World War II. The WGA prevailed in arbitration by establishing that Hogan's Heroes creators Bernard Fein and Albert Ruddy held such rights under the terms of the old guild agreement, which led Rysher, successor to Bing Cosby Productions, the producer of the original series, to appeal the arbitrator's decision to the 9th Circuit. The parties recently withdrew the appeal, and an attorney involved in the dispute confirms that the two sides have worked out differences.
- While the iPhone star killed the iPod star, Apple is still facing an antitrust claim that contends the computer giant once used an iTunes software upgrade to stifle competition by preventing customers from playing purchased music on devices other than an iPod. The class action worth potentially $1 billion in trebled damages appears to finally be headed to trial with the judge allowing the jury to hear emails and taped testimony from the late Apple founder Steve Jobs. The defendant appears primed to argue that the software upgrade was a genuine product improvement. The judge won't, however, let the jury hear much about Jobs' character nor his cancer fight.
- Glenn Beck will have a tougher time defending himself against a lawsuit alleging he defamed a 20-year-old Saudi Arabian student living in Massachusetts. Abdulrahman Alharbi was at the Boston Marathon where a bomb exploded, and in the confusion that resulted immediately afterwards, Beck said that Alharbi was a "very bad, bad, bad man" and the "money man" behind the attack. After Beck was hit with a defamation lawsuit for such comments, he argued that the plaintiff couldn't demonstrate actual malice, but U.S. District Judge Patti Saris rejects that Alharbi is a limited purpose or involuntary public figure. "As a private figure, Alharbi is not required to allege actual malice in order to make out a claim for defamation," writes the judge on Tuesday. Here's the judge's full order.
- BMG Rights Management and Round Hill Music have filed a lawsuit in Virginia against Cox Communications for contributory and vicarious copyright infringement, alleging that the ISP is not taking notices of user piracy seriously and has gone so far as having "taken measures to avoid and stop receiving those notifications." The complaint states that "Cox's policy of refusing to terminate repeat infringers protects a large revenue stream that Cox receives every month from the many repeat infringers who are its subscribers and account holders." The plaintiffs are seeking damages plus an order directing Cox to promptly forward infringement notices to their subscribers.
- The Motion Picture Association of America has tapped Dean Marks as its new deputy general counsel and chief of global content protection. Marks was previously the antipiracy guru at Warner Bros., and he'll be replacing Michael Robinson, who is retiring.