Copyright & Vocals: Can An Employer Put An Employee's Voice In A Video Game?

In Lewis v. Activision Blizzard, Inc., --- Fed. Appx. ---- (December 18, 2015) dealt with the question of whether voiceover "baby murloc" recordings made by an employee of Blizzard Entertainment were "works for hire" under the Copyright Act.


Under the Copyright Act, a "work made for hire" is defined as "a work prepared by an employee within the scope of his or her employment."  17 U.S.C. 101.


A work is made by an employee within the scope of her employment when (1) it is of the kind the employee is employed to perform; (2) it occurs substantially within the authorize time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer.


The Ninth Circuit found evidence that the voice recordings were within the employee's job description, the recordings took place during office hours in Blizzard's studios and were part of her job reviews.  You watch or listen to the oral argument before the Ninth Circuit by visiting the video above.


The Ninth Circuit found Lewis's state law claims for commercial misappropriation of voice pursuant to California Civil Code Section 3344 to be preempted by the Copyright Act.


My book Copyright Litigation Handbook (Thomson Reuters West 2015-2016) discusses how the Copyright Act often preempts equivalent state law claims and discusses how the work for hire doctrine works.


For the Ninth Circuit's full decision, click here.


www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

Copyright & Music: Proving Infringement With Indirect Evidence

In Guzman v. Hacienda Records and Recording Studio, Inc.,  -- F.3d --- (December 14, 2015), the U.S. Court of Appeals for the Fifth Circuit had the opportunity to listen to some Tejano music.


Guzman, the writer of the music and lyrics of Triste Aventurera sued the Hometown Boys for Cartas de Amor.  Guzman's song had exactly the same theme: a woman pleading with her ex-lover to take her back, and the exact same opening lyrics.


Both bands were from Corpus Christi, Texas, the home of Tejano.  Guzman had played Triste in the 1970's in clubs and claimed that Triste had been on the radio, but the testimony was inconsistent.   The trial court concluded that Guzman had failed to prove that the Hometown Boys had access to Triste.


Copyright infringement plaintiffs rarely have "direct" evidence of copying.  That is, a plaintiff can rarely find a witness who actually saw the copying occur, for example.  Thus copyright law permits plaintiffs to prove copyright infringement through indirect evidence.  To prove copyright infringement, Guzman bore the burden of showing 1. access to his copyrighted song and 2. probative similarity of the allegedly infringing work.  Alternatively, where the copyrighted works are strikingly similar, a court may dispense with the requirement that a plaintiff prove access.


The Fifth Circuit held that the expert testimony at trial as to the differences in the two works supported the trial judge's finding that the works were not strikingly similar.  Additionally, the Court found that credibility determinations by the trial judge were important to the determination that Guzman had not demonstrated that the Hometown Boys had access to his song.


In my book Copyright Litigation Handbook (Thomson Reuters West 2015-2016), I discuss how to gather evidence to prepare for a copyright litigation and some of the ways that access may be shown.


To read the Fifth Circuit's full opinion, go here.


www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

Killer Copyright Trolls: Can't The Jane Does Of The World Make Them Pay?

 
If someone sues you for a copyright infringement you didn't commit and the case gets dismissed, shouldn't you get your attorneys fees?  In Killer Joe Nevada LLC v. Does 1-20, 807 F.3d 908 (8th Circuit 2015), the United States Court of Appeals for the Eighth Circuit considered a case in which a plaintiff filed a complaint identifying the defendants only by internet protocol ("IP") address that had downloaded a film using Bittorent.  Killer Joe Nevada subpoenaed the internet service providers ("ISP"s) and got defendant Leigh Leaverton's name.   Leaverton denied downloading the film Killer Joe and filed a counterclaim for a declaratory judgment that she had not infringed Killer Joe Nevada's copyright.   In response, Killer Joe Nevada voluntarily dismissed the action.


If you Google "Killer Joe Nevada LLC" you will find the website of Antonelli law, dedicated to fighting copyright trolls and offering a free consultation.


Leaverton sought her attorneys fees, which the district court denied.  In certain actions under the Copyright Act, the district court has discretion to award attorneys fees.  In denying Leaverton her attorneys fees, the Eighth Circuit found that Killer Joe Nevada had acted reasonably in suing the IP addresses and in subpoenaing the ISPs.  It is unclear from the Eighth Circuit's decision what evidence Killer Joe Nevada relied on in bringing the suit or whether Killer Joe Nevada could have given Leaverton the opportunity to respond before naming her personally in the lawsuit.


Understanding when attorney fees may be available under the Copyright Act is not a simple task, as recent litigation before the U.S. Supreme Court has shown.  My book Copyright Litigation Handbook (Thomson Reuters West 2015-2016) devotes an entire chapter to the questions of whether and when attorneys fees and costs are available in a copyright litigation.


For the Eighth Circuit's full opinion, go here.


www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd