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.

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

Rule 26(e) of the Federal Rules of Civil Procedure: Production of Images After Discovery Cut-Off Ok'd

In Teter v. Glass Onion, Inc, 2010 WL 2945520 (W.D. Mo. July 22, 2010), the court considered a motion pursuant to Rule 37(c) of the Federal Rules of Procedure to exclude from evidence images culled from the internet and Internet Archive after the discovery cutoff.

Rule 26(e) of the Federal Rules of Civil Procedure provides:

(e) Supplementation of Disclosures and Responses.

(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.

 In Teter, the plaintiff requested all documents that were to be used at trial during a formal discovery request.
 
Rule 37(c) of the Federal Rules of Civil Procedure provides:
 
(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

[ * * * ]

In this case, the materials were provided 20 days after the close of discovery.  The court found that the images were publicly available to both sides from a public domain source, the adversary could not possibly be prejudiced.

I cover Discovery in Chapter 14 of the Copyright Litigation Handbook.  Not every judge takes Teter's common-sense view.   And Teter should not be seen as a free pass from a discovery cut-off.   When discovery has already been produced and new materials come in, scan the new materials, privilege review/redact/log them, and get them out right away with a cover letter saying you are supplementing pursuant to Rule 26(e).  Not every judge will permit documents produced after a discovery cutoff to be used in a trial.  


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Why Did Congress Write the Copyright Act's Criminal Provisions Without Using the Words "Music Piracy"?

Daniel Defoe, Author of Robinson Crusoe - Attacked By Pirates Since 1703

Image thanks to Wikipedia

I don't practice criminal law.  It is truly astonishing to see the poetic license that judges let prosecutors use to impose criminal penalties on defendants for crimes that don't exist.   Here's a case of a kid being prosecuted for "music piracy" - a crime not found in the Copyright Act, and specifically not in 17 U.S.C. Section 506 "Criminal Infringement".  U.S. v. Cassim, 2010 WL 933943, 4 (S.D.Tex. March 12, 2010).  Here is the judge's denial of defendant's motion in limine to exclude use of the term "music piracy".

IV. MOTION IN LIMINE REGARDING THE TERM “MUSIC PIRACY”


Defendants seeks to exclude any use of the terms “music piracy” from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.

I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work.  But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.


From Wikipedia's definition of "Copyright Infringement"

Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.


For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : "Its being Printed again and again, by Pyrates"). The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.

The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term "piracy" to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.

Let's get the prosecutor a thesaurus, call the crime by the name Congress selected in drafting 17 U.S.C. Section 506 and let's leave the pirate stuff to Johnny Depp.

Copyright Licensing Litigation - Motion in Limine and Summary Judgment (Ch 7,8, 14)

In Command Cinema Corp. v. VCA Labs, --- F. Supp.2d ----, 2006 WL 3357257 (S.D.N.Y.) 11/17/2006, a producer of adult films sued a film laboratory over loss of masters. Defendant VCA's motion to dismiss claims for conversion, breach of express contract and breach of implied contract was met with a cross-motion by Command Cinema for summary judgment on conversion. Simultaneously, VCA moved in limine to exclude evidence of Command's lost profits as a measure of damages and to preclude Command's claim for punitive damages. In a conference call, the court advised the parties that it was considering summary judgment on more claims than Command had requested and invited the parties to make additional submissions.

The court granted summary judgment on the breach of contract claims and dismissed claims that were duplicative or inconsistent with successful breach of contract claims (conversion, breach of implied contract). Simultaneously, the court granted in part and denied in part the Defendant's motion in limine. For one film, the court excluded evidence of lost asset value as a measure of damages, for another the court reserved the issue for trial but noted that the type of calculation - a comparison with comparable films - was "capable of determining damages with reasonable certainty." For both films, the court granted the motion in limine to the extent of precluding a request for punitive damages.

The action involves no claims under or citations to the Copyright Act. Command is a New York corporation and VCA is California-based, so the presumed subject matter jurisdiction would be diversity jurisdiction, but the opinion, which is supplemented by 105 endnotes, is silent on the jurisdictional question. Generally speaking, contracts involving copyrighted works do not belong in federal court unless they raise issues "arising under" the Copyright Act, or unless there is an independent ground for subject matter jurisdiction, such another federal question (28 U.S.C. Sec. 1331) or diversity jurisdiction (28 U.S.C. Sec. 1332).

Plaintiff copyright owner entrusted, pursuant to written contracts, Defendant laboratory with masters which were to be upgraded, duplicated as sub-masters and the original masters were to be returned to Plaintiff. Defendant returned the masters, which Plaintiff then destroyed. Following that, Defendant lost or misdelivered the sub-masters.

Applicable Rules of Procedure. Defendant's motion to dismiss was brought under Rule 12(b) of the Federal Rules of Civil Procedure. The cross-motion for summary judgment was brought under Rule 56. Motions in limine may be brought any time including during trial, usually under procedures governed by local rules or a judge's individual rules.

Practice Tip for Lawyers. Both parties wisely focused on the relevant issues: breach of contract and the scope of damages. Apparently after being warned by the judge of a possible grant of summary judgment, Defendant's lawyer made a motion in limine that reduced Defendants' potential liability and increased the chances for settlement. A motion in limine is a powerful tool to preclude or get evidence admitted prior to trial that should be seriously considered at the early stages of litigation.