Evidence in Copyright Litigation CLE

          

       Click here to download this CLE program On Demand!

       Ray Dowd, author of West’s acclaimed Copyright Litigation Handbook and a partner at Dunnington Bartholow & Miller LLP in New York City and Glen McMurry, a distinguished litigator at Dungan & LeFevre in Dayton, Ohio will take us through the surprisingly complex rules of evidence.

       The object of taking discovery is to gather admissible evidence sufficient to sustain your client’s burden on the case- but how do you get the evidence admitted?

       Just what is “relevant evidence”? The first three rules of Article IV of the Federal Rules of Evidence govern the lion’s share of evidentiary disputes in copyright litigation. What exactly is hearsay, and when is it admissible in court in copyright litigation? And how do you get hearsay into evidence- or what is an exception to the hearsay rule? Tune in to this CLE to find all these answers and more.

       How can you use motions in limine to include or exclude evidence in advance of trial? What does Rule 408 of the Federal Rules of Evidence exclude evidence of settlement negotiations?  When is a good time to use a trial or bench memorandum to preserve your objection for the record- especially to avoid judges’ hostility to objections? There have been many developments in the Federal Rules of Evidence when it comes to copyright litigation, tune into this CLE to understand how they can affect you.

       Dowd’s Copyright Litigation Handbook is the first publication aimed at the practitioner who must make quick practical decisions in the heat of battle and evaluate the immediate procedural consequences. Copyright Litigation Handbook devotes attention to procedural case law that rarely reaches the appellate level, but is of critical importance to the life of everyday practitioners.

       The New York Law Journal called Dowd’s Copyright Litigation Handbook “an indispensable guide and supplement to the ins and outs of copyright litigation…”.   Join us for a lively session on a hot topic.   For more information on Copyright Litigation Handbook 2013 ed, please visit the Thomson Reuters Westlaw Store here.

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd 

Copyright Law - Sixth Circuit - Is Hearsay Admissible To Prove An Ancient Work-For-Hire?

 Brumley v. Albert E. Brumley and Sons, Inc., --- F.3d --- (2013), 2013 WL 4105842 (6^th Cir. 2013).





From http://www.therestorationmovement.com/brumley.htm

Songwriter Albert Brumley began writing and composing “I’ll Fly Away” in 1928 or 1929.  In 1932, the Hartford Music Co. secured the copyright by publishing it in a songbook.  In 1947, the songwriter’s eponymous Albert E. Brumley and Sons, Inc. purchased Hartford’s assets.   Songwriter said in a 1977 interview recorded with his son that he sold the rights to “I’ll Fly Away” for three dollars.   Newspaper articles from 1977 and 1986 said that the songwriter was a salaried employee of Hartford.  The district court granted a pre-trial motion in limine and admitted the songwriter’s son’s 1977 recorded interview with his father under the residual exception to the hearsay rule.  Fed. R. Evid. 807.  Also on the motion in limine, the district court then excluded the newspaper articles, even though the articles would have been admissible under Fed. R. Evid. 803(16)(ancient documents) and Fed. R. Evid. 902(6)(self-authenticating newspapers and periodicals), applying Fed. R. Evid. 403 (relevance) because the newspaper articles did not note the basis for the author’s statements therein.  With respect to the trial court’s admission of the sound recording, the Sixth Circuit noted that this was a question of first impression. The Sixth Circuit upheld the admissibility of the recording under the residual exception to the hearsay rule and concluded that the recording had the “requisite guarantees of trustworthiness”.   With respect to the newspaper articles, the Sixth Circuit reversed.  The newspaper articles were properly admissible as self-authenticating and ancient documents under Rules 902 and 803(16) of the Federal Rules of Evidence.  The evidentiary weight of the challenged articles should have been left to the discretion of the jury.

To read Judges Keith, Martin, and Cole's decision, click here.

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 

Copyright Law - Eleventh Circuit - Can Prior Infringements Help A Substantial Similarity Claim?

Architectural Works, Copyright Infringement, Substantial Similarity, Evidence, Evidence of Prior Acts
Dream Custom Homes, Inc. v. Modern Day Construction, Inc., 476 Fed.Appx. 190 (11^th Circuit April 17, 2012).  District court granted summary judgment finding that no reasonable jury could find substantial similarity in architectural drawings and designs.  The 11^th Circuit rejected the appellant’s argument that prior act evidence should be admissible.  Appellant tried to draw the analogy to trademark law where such evidence is admissible to prove likelihood of confusion.  The 11^th Circuit observed that prior act evidence even if admissible to prove damages is not admissible to lower the threshold to prove liability.  Rule 404 of the Federal Rules of Evidence excludes prior act evidence to prove character to demonstrate action in conformity with that character.


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 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

Copyright Law - Fifth Circuit - Did Novelist's Cooperation with DVD Producer Create Implied License?

Copyright Infringement, Declaratory Judgment, Exclusive Copyright License, Evidence, Statute of Frauds, Implied Nonexclusive Copyright License, Jury Instructions, Verdict Forms, Attorneys Fees

Baisden v. I’m Ready Productions, Inc., 693 F.3d 491 (5th Circuit August 31, 2012).  Novelist enters into contract granting exclusive rights to screenplays and limited time for DVD production/distribution for two novels.  After DVD contract expires, parties enter into oral agreement extending DVD production/distribution.   Novelist gets movie deal, sues to end oral agreement, claiming copyright infringement.   Jury trial conducted, jury finds no copyright infringement.  Held: implied nonexclusive license may be proven by totality of the circumstances.  Proper jury instruction on affirmative defense of a license cured a potentially unclear jury verdict form, particularly where counsel did not object.  Here, novelist agreed to activities, participated in distribution of DVDs, bought DVDs to resell and accepted royalty checks.  Full performance and payment of royalties sufficient to remove from statute of frauds 17 U.S.C. §204(a).  Trial court’s refusal to permit novelist to read entire novels to jury or show second two-hour DVD was not reversible error where testimony regarding similarities and differences was permitted and where jury had copies of the novels.  Trial court’s refusal to award either party attorneys fees affirmed.

www.dunnington.com
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here