Monday, July 31, 2017

When life gives you Lemonade: court preserves copyright complaint against Beyoncé

Estate of Barré v. Carter, No. 17-1057, 2017 WL 3188489 (E.D. La. Jul. 25, 2017)

Plaintiffs alleged that they owned in the copyright in two YouTube videos created by Anthony Barré, a performance comedian and music artist from New Orleans whose voice “was a unique instrument and inextricably linked to his performance art.”  Defendants released the song “Formation,” which used three phrases from Anthony Barré’s works, “What happened at the New Orleans,” “Bitch I’m back, by popular demand,” and “Oh yeah baby. I like that.”  Barré’s voice, performance, and words were also allegedly “used and exploited” during the “Formation World Tour,” for example, “Oh yeah baby, I like that” was used during the introductory performance of “Formation,” and defendants allegedly utilized other performers to imitate Anthony Barré’s voice and cadence in saying, “Bitch I’m Back by Popular Demand” before defendant Carter appeared onstage.  Plaintiffs sued for copyright infringement, false endorsements under the Lanham Act, violations of the Louisiana Unfair Trade Practices Act (“LUTPA”), and unjust enrichment under Louisiana law.  Here, the district court understandably refuses to dismiss the copyright claim on the pleadings, and inexplicably refuses to dismiss the other claims as preempted/precluded by Dastar/barred by the First Amendment.

Defendants argued that their purpose was transformative, using the short clips to “create the tone, mood, setting and location of the New Orleans-themed ‘Formation.’ ”  Defendants disagreed that this could be transformative, and that the original work wasn’t altered as in previous “appropriation” art cases where fair use is found ((a) hunh? (b) taking little bits and mixing them with others is alteration in my book, (c) I wouldn’t call this an appropriation art case unless you want to merge that subset with transformative use cases in general).  Other bobbles aside, the court concludes that enough has been pled to go forward on the question of transformativeness and of fair use.  And it correctly rejects plaintiffs’ bizarre idea that fair use doesn’t apply in sound recording cases because of Bridgeport Films.

False endorsement: Plaintiffs pointed to Facenda v. NFL Films, arguing that the court allowed a false endorsement case over use of a voice “ when the promotional video and video game at issue were used for commercial purposes.”  [Here we see part of the problem of the chaos of false endorsement/publicity claims: the plaintiff, however misleadingly, gets to ignore the distinction between advertising and non-advertising uses.]  The court found that such a claim could be viable. [But that’s not the relevant question.  False endorsement is a potentially viable claim; the question is, however, whether copying an author’s work, especially outside an ad and as part of another creative work, can itself constitute the relevant act supporting a false endorsement claim.  Dastar and other cases indicate that it can’t.  It’s also worth noting that the Copyright Act deliberately allows imitation of sound recordings, which isn’t within the scope of the sound recording reproduction right, so allowing a claim based on soundalikes not used in advertising (as alleged here) also creates a direct conflict with the Copyright Act.]  The court held that it was enough to allege that Barré’s voice and words were distinctive and recognized by consumers and the media, which “caused consumer confusion regarding involvement or approval of his estate” in “Formation,” the “Lemonade” album, and the “Formation World Tour.”

The court distinguished Oliveira v. Frito-Lay because plaintiffs alleged (1) that defendants imitated Barré’s voice, and (2) that defendants used Barré’s voice in a way that created consumer confusion about endorsement.  (2) of course merely restates the theory rejected in Oliveira and doesn’t distinguish the case at all; (1) doesn’t really address why a performance can be a trademark for itself, which is the basic problem of such claims—again, especially as applied to non-ad uses (which just multiplies the copyright conflicts).

Defendants correctly noted that, under Rogers, only an explicitly misleading non-advertising use escaped First Amendment protection, and that explicit means explicit.  The court disagreed with the latter part of this argument.  “For example, Plaintiffs allege in the amended complaint that the ‘conduct of Defendants has been willful from the inception of the creation of “Formation” and “Lemonade.”’ ” [That’s not what “explicit” means.  It is not a synonym for “intentional.”  Otherwise Rogers would have come out very differently.  “Explicit” means falsely claiming authorization, not remaining silent, which at most could be an implicit claim.]  The allegations that defendants “intentionally and unlawfully copied the unique and original voice and words of Anthony Barré” to use as the “defining introduction of the song ‘Formation,’ ” “used and exploited” Anthony Barré’s voice and words during the live performances by having another person imitate his voice and cadence, and “failed to give credit or compensation in an ‘unethical, misleading, false, unfair and deceptive’ manner” somehow substituted for explicitness.

Given this ruling, it’s not surprising that the Louisiana Unfair Trade Practices Claim also survived, though of course it also has copyright preemption/First Amendment problems that match up with the Dastar/Rogers problems of the federal claims.  Plaintiffs alleged misappropriation that went beyond copyright because defendants acted “unethically, wrongfully and fraudulently.”  [The “going beyond” alleged consists entirely of the copying and its inherent effects.  “Profit” isn’t an extra element, nor are all those adverbs, and the alleged misrepresentation is again based solely on the copying as misrepresentation.] 

An unjust enrichment claim was dismissed as duplicative.

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