Sunday, February 1, 2015

Don't Mess With the Black Eyed Peas or 17 USC 505

It sometimes happens that potential plaintiffs are dismayed by my reticence in taking their copyright infringement case – even when they assume they have a clear-cut case.  From now on I may suggest to these potential litigants that they read the sad case of Bryan Pringle v. William Adams Jr., et al. 

            In that case, Pringle sued Adams, better known as  and his band, the Black Eyed Peas (as well as their producer and record label and various other publishers) claiming that their hit "I Gotta  Feeling," infringed upon his song “Take a Dive”. 

            I have not read the entire procedural history of the case but it seems that Pringle's cause of action was doomed from the beginning due to an issue regarding an improper copyright registration.  Sections 411 and 412 of the Copyright Act mandate registration as a prerequisite of a copyright infringement lawsuit. 

            However, after Pringle lost the case on summary judgment,  and his compatriots asked the court to order Pringle to pay their attorney's fees incurred in  defending the action. This  resulted in an award of $1 million to, $1.3 million to producer David Guetta and $500,000.00 to the band's label Interscope.  For some reason Fergie lost out on recovering her attorney's fees. 

            This is the harsh reality of the Copyright Act.  Section 505 of the Act states, ". . . the court may also award a reasonable attorney's fee to the prevailing party as part of the cost" and since John Fogerty successfully defended  his case against Saul Zaentz, this has been a key ingredient of infringement litigation and a deterrent to anyone considering bringing all but the strongest cases.  Conversely, it can also serve as an incentive to settle early if you are the defendant in other types of infringement litigation. 

            It is often hard to convince a songwriter that what he hears as a "substantial similarity" between his song and someone else's song may to the ears of an expert musicologist not be similar at all – or while similar may not be original enough to qualify for copyright protection.  If you add to this the specter of having to pay the other side's attorney's fees the concept of seeking justice (real or perceived) becomes much less attractive. 

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