Media Law Minnesota

Music-licensing company BMI today filed its third copyright-infringement case this month, again alleging a Minnesota establishment has permitted popular music to be performed without paying for the right to do so.

The bar in question is the Pullman Club in Shakopee.  The complaint and an exhibit filed in federal court in Minnesota allege the establishment did not pay for the right to perform Brown Eyed Girl by Van Morrison, Folsom Prison by Johnny Cash, Rocket Man by Elton John, and three songs attributed to Mick Jagger and Keith Richard:  Honky Tonk Women, Jumpin’ Jack Flash, and Paint It Black.  The alleged copyright infringement occurred Sept. 10, 2011.

As I posted previously, earlier this month BMI filed lawsuits alleging copyright infringement at establishments in Anoka and Jordan.

Ring of Fire, Walk Like an Egyptian, and Billie Jean are among a potpourri of songs that two Twin Cities-area taverns are accused of playing without paying for the rights to do so.

Music-licensing company BMI started copyright-infringement lawsuits in Minnesota federal court last week.  The Defendants are  bars called Brewers of Jordan (in Jordan) and Courtside Bar & Grill in Anoka.  (The complaints are here and here, and exhibits here and here.)

Ring of Fire is among the songs both bars are accused of playing, back in early August.  The list of other songs Brewers allegedly played reads like a middle-aged dad’s iTunes library on shuffle:  Billie Jean, Cover of the Rolling Stone, Have Mercy, Mama He’s Crazy (a/k/a Mama She’s Lazy), Mammas Don’t Let Your Babies Grow Up to be Cowboys, Mountain Music, Proud Mary, Simple Man, Something to Talk About, Walk Like an Egyptian, Watermelon Crawl, One of these Nights, Snow Hey Oh, and Little White Church.

The lawsuit alleges the Anoka bar played four songs, including Ain’t No Sunshine, Simple Man, and Jumper.

BMI’s website explains that it “collects license fees from businesses that use music, which it distributes as royalties to songwriters, composers & music publishers.”   Companies that own the various copyrights are listed as plaintiffs, too.  And in the Brewers suit, so are “sole proprietor” artists Kenny O’Dell, Shirley Eikhard, Glenn Frey, and Obed Wayne Kirkpatrick.

The cases are the musicians’ to prove.  But the lawsuit does draw attention to an often-understood reality about music and downloads:  we don’t own the songs.  Instead, we own a license to listen to the songs we “purchase.”   Purchasing music for use at home, in the car, etc. does not necessarily mean the music can be used for commercial purposes.

Claiming a copyright and suing for copyright infringement are two different things.  As I’ve stated in my Copyright Q&A, a writer, photographer, or website creator owns a copyright in the article, picture, or online content is written, taken, or designed.

Going to court to seek money for copyright infringement, though, requires complying with copyright “registration” requirements.  Problem is, the law is unclear on whether a copyright is “registered” at the time the copyright claimant sends in the application, or at the time the copyright certification is in hand.  Last week, St. Paul-based federal judge Donovan Frank confronted that very question — in some ways a dry one that only a lawyer could love, but in other ways a highly important question given that creative content on the internet continues to proliferate.

At issue in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc. are websites that the telemarketing firms maintain.  The lawsuit is about whether one firm illegally copied the website of the other.  Judge Frank explained that the Eighth Circuit Court of Appeals (which issues decisions governing Minnesota-based federal courts) had not decided the issue.  However, he ruled that the court likely would come down on the side of the “broader approach” — the approach suggesting that as long as the registration check is in the mail, a lawsuit may be maintained.

Federal courts are split on whether Judge Frank was right.  Eventually, the issue might end up in the Supreme Court.  We’ll see.

This month federal judge Donovan Frank dismissed a copyright lawsuit brought by the guy who designed much of the decor and signs for the fairly famous Famous Dave’s restaurants that began in the Twin Cities and now are nationwide.  The lawsuit helps show how “intellectual property” such as copyrights are not your run-of-the-mill property, and the recent ruling is Exhibit A for why a creative person who is hired to create something for a business should retain a lawyer.

The creative person here, Allen Thomsen, was hired by Famous Dave himself (Dave Anderson) after Anderson showed Allen the concept for his first restaurant.  This was in 1995.  The restaurant was to be in the Linden Hills neighborhood of Minneapolis.   The concept, now familiar to pretty much every Minnesotan, featured an interior with the look and feel of a “typical roadside BBQ shack” with “collectible Americana antiques.”  Thompsen prepared initial drawings and then designed the decor and signage for the “shack” theme, and Anderson hired him — not necessarily for his design work, but to paint signs for the Linden Hills restaurant.

By October 2001, Anderson had opened three dozen restaurants and Thomsen had pained signs for about 20 of them.  One thing led to another and Thomsen ended up claiming copyright ownership in lots of Famous Dave’s designs and signs.  Anderson and Thomsen settled the dispute by a document in which Thomsen agreed to “release” his design and sign work to Famous Dave’s, apparently for $15,000 plus attorney’s fees.

In this more recent lawsuit, Thomsen claimed that the “release” was not an “assignment.”  In other words, his argument was that although he agreed not to seek a copyright ownership interest in the designs and signs, he did not transfer ownership to Famous Dave’s.  Judge Frank disagreed and ruled that by signing the release, Thomsen abandoned his ownership interest, and Famous Dave’s owns it all.

This is a toughie.  As I explain in my Q&A on the left side of the page, “a copyright is a property right, similar to your right to own land, to sell a car, or to give your neighbor permission to use your lawn mower.”  So if I lend you my lawn mower and then agree not to seek an ownership interest in it, have I transferred it to you?  According to the law of “abandonment” that comes to us by way of Jolly Ol’ England, the answer is yes.  Under our common law, someone must own a lawnmower.  If it had been mine, and you have it, and I tell you I don’t want it, it’s yours.  Possession, as they say, really is nine-tenths of the law.

The trouble is, copyright law sometimes involves the other tenth because under the law someone need not own everything.  As I explain to the left, no one owns the visual depiction of the Mona Lisa.  It is in the public domain.  And under our copyright law, a creative person has the ability to “transfer” a work into the public domain for everyone to use and no one to own.

Interesting case …