Civil Action No.08-11727-NMG Plaintiff's Opposition to Defendants
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Case 1:08-cv-11727 Document 101 Filed 07/17/2009 Page 1 of 22 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SAMUEL BARTLEY STEELE, BART STEELE PUBLISHING, and STEELE RECORDZ, Plaintiffs, v. Turner Broadcasting System Inc., 11. Civil Action aI., No.08-11727-NMG Defendants. Plaintiff's Opposition To Defendants' Motion For Summary Judgment I. Introduction Plaintiffs Samuel Bartley Steele, Bart Steele Publishing, and Steele Recordz (hereinafter, "Plaintiffs") submit this memorandum in opposition to the Motion for Summary Judgment filed by Defendants on June 10,2009 and the Motion filed by Defendant Kobalt on June 26, 2009. 1 590 Case 1:08-cv-11727 Document 101 Filed 07/17/2009 Page 2 of 22 In its April 3, 2009 Order, the Court directed the parties to address the issue of substantial similarity between Plaintiff s' workl and Defendants' works. The court's order correctly summarizes the claim in saying "According to Steele, much of the visual portion of the TBS Promo is derived from his song and the Bon Jovi Song was then based upon that Promo, the Steele Song, 0 r both." The Steele Song is the registered version which will be referred to as "Team". Defendants have left enough of Plaintiffs 'work in their final product that the Court will see substantial similarity between the works. Plaintiffs will show that ordinary observers, professional musicians, and video/film experts observe substantial similarity between the works. Because there are genuine issues of triable fact / disputed material facts on the issue of similarity, Defendants' motions must be denied. Plaintiffs will refer to AffidavitiArticle Exhibits as 'Exhibits A, B, C, D, E & F', as well as the respective subsections within, in order to help prove sub&ta!ltial similarity between the works. As detailed in this Opposition and the accompanying affidavits and articles, temp tracking has become standard operating procedure for both film production and commercial advertising business (see Exhibits B-4 {Brown} & B-6 {Just} as well a Exhibits D 1-6). However, temp tracking constitutes unlawful reproduction, synchronization or "sync", and derivation, and therefore violates copyright law. Musicologists are now often hired to "clear" temp tracks, i.e., provide their opinion that a I The Court's April3rd Order ruled that only Plaintiffs' first song, entitled "Man I Really Love This Team", is to be considered for similarity to Defendants' works. The Order stated the Court's detennination that Plaintiffs' Derivative version, entitled "Man I Really Love This Town", with its derivative and different lyrics, was not included in Plaintiff's copyright registered with the US Copyright Office, and that the O>urt therefore lacks jurisdiction over any dispute involving Plaintiff's derivative / "Town" song. Although a recording of the derivativef'Town" version of Plaintiffs' song does not appear on the CD deposited with the Copyright Office, Plaintiffs argue that the copyright registration extends to his derivative H town" song. See G Ricoylj & Co v« Parampunt Pictures \ 189 F2d 469 (2d Cir. 1951) and cited in JobusOll v. Gordoll, 4()9 F.3d 12, 18 (1st Cir. 2005). They state that if the material is in both versions, it is copyright protected. Since the words "Boston"lTowniHometown/Cooperstown" are in the registered version (lyrics copyrighted at the Library Of Congress since June. 31, 20(6), their protection should extend to the derivative, " Man I Love This Town" (since "town" is not new material and "Team" is about the hometown Boston just as much as it is about the Red Sox ). Moreover, the Red Sox have acknowledged access to Plaintiff's original" Team" song in their April 'Answer'. In light of these facts, Plaintiff urges the Court to extend jurisdiction to include the "Town" version of their song as the 0>00 analyzes this case. However, even if the O>urt is not inclined to extend jurisdiction, this Opposition will still demonstrate substantial similarity between the original ''Team'' song, and Defendants' works. '1- 591 Case 1:08-cv-11727 Document 101 Filed 07/17/2009 Page 3 of 22 given piece of music to be used in the final version of a commercial is not substantially similar to music acknowledged to have been used as a temp track. In fact, musicologists are the ones who, knowing reproductive and sync rights have already been violated, assist to illegally create an unauthorized derivative work that will hopefully avoid copyright laws. Plaintiffs challenge this practice head-on, as it assists corporations in ripping off writers and publishers. The very purpose of the copyright law is that creators are entitled to profit from their works or else they would be spending all their time .ll£l1 creating, and struggling to survive. The musicologists are getting paid to help avoid copyright laws and divert these profits from rightful owners to the corporate entities and the established bands that will help sell their product. The musicologists involved in this illegal practice - notably Defendants' expert, Anthony Ricigliano- are clearly hurting the advaocement of the art~. As discussed in detail below, Plaintiffs attempted to enlist musicologists to assist with proving their case. Through these efforts, PlaintiftS realized that musicologists could not provide a complete analysis of the work s involved, because those works include video and film--the MLB Promo. Musicologists limit their analysis to music. Comparing only the songs involved in this case overlooks a huge part of Plaintiff's claim. Plaintiffs therefore sought out experts in film and video production to look at the case. These experts (Brown, Carapeeza, Whitman, Murphy, Ellis, Feraguto and Yasuda) all state that the MLB Promo was clearly derived from Plaintiff's song. In the introductory remarks of their Motion, Defendarrts refer to a 2-page informal anyalsis prepared for Plaintiffs by musicologist Ale x Stewart. Defendants highlight Stewart's statement that the case "is not strong musicologically." Defendants fail to include Stewart's conclusion that "it seems (Plaintift) got a raw deal." Stewart's 2-hour cursory review was performed in January 2009, before Plaintiffs realized musicologists were essentially ignoring the video evidence and limiting their compari sons to Plaintiffs song and the CD version of the Bon Jovi song. Plaintiff therefore sul:rnits its expert reports to expand upon Stewart's limited analysis. See Exhibits A-I (Yasuda), and A-2 (Farguto), Exhibits B-1 B-6 and Plaintiff Steele's own affidavit, Exhibit F-3. 592 Case 1:08-cv-11727 Document 101 Filed 07/17/2009 Page 4 of 22 II The Core Of ThiS CaSe' "SynchratjYe Violation 11 The core of this case is quite simple: a sync right violation embedded in an unauthorized derivative work. As explained by the court in Abko v Stellar RecQrds 96 F3d 60, fn 4 (200 Cir. 1996), a copyright owner's "synch rights" are derived from the exclusive right to reproduce a work protected by the Copyright Act: "A synchronization license is required if a copyrighted musical composition is to be used in "timed-relation" or synchronization with an audiovisual. work. " Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 24.02[f] (1995). Most commonly, synch licenses are necessary when copyrighted music is included in movies and commercials. S ee 4 Nimmer § 24.04[C]. The "synch" right is a right exclusively enjoyed by the copyright owner. BuffalQ Broadcasting Co Inc. v. ASCAg 744 F.2d 917, 920 (2d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1181,84 L.Ed.2d 329 (1985). The Copyright Act does not explicitly confer synchronization rights, but courts have held that the synch right is derived from the exclusive right of a copyright owner, under 17 U .S.C. § 106( 1), to reproduce his work. Agee v. Pammollot CmnmnoicatiOQS Inc 853 F.Supp. 778, 786 (S.D.N. Y.1994), aff'd in part, rev'd in part, 59 F. 3d 317 (2d Cir.l995); An~l Music. Inc. v. ABC Sports. Inc. 631 F.Supp. 429,433 n. 4 (S.D.N.Y.l986). Defendants first synchronized video images in timed relation with Plaintiffs' song, "Team". In most cases, the temp audio is used for general mood and feel/and or direction. Here, however, Plaintiffs' song was used for more than just that. Defendants did not just sync video to the music for mood and feel. Defendants used Plaintiff s' copyrighted lyrics to select video images (spotting cues) for this baseball commerciaL Defendants also used Plaintiffs'lyrical storyline to structure their video (copying plot or storyline). What makes this case different is that in the process of violating Plaintiffs' sync rights (not just for mood and feel/direction), Defendants also simultaneously created a derivative work in a new medium based upon Plaintiffs' copyrighted lyrics and storyline. For the purpose of this case, and perhaps future similar cases, let's call this a 'synchrative' work. This case of ' new medium' copyright violation is certainly not the first. In Ka1em .Ql. v Harper Brothers 222 U.S.55 (1911), a 15 minute silent movie/video was found to infringe upon the copyright of a 560 page novel called "Ben Hur" written by General Lee Wallace. Although this 15 minute movie/video (with no audio whatsoever), was 'transformed or adapted' from only a portion of the novel (a chariot racing scene), i twas clearly a derivative way of telling the story of General Lee's copyrighted story line. Even if 593 Case 1:08-cv-11727 Document 101 Filed 07/17/2009 Page 5 of 22 the movie had audio, today's musicologist would insist the courts compare the words in the book to only the words in the movie script.