Kings of Crunk reign in summary judgment

Christopher Baker of Kaye Scholer alerted me to the court’s grant of summary judgment in Wilchcombe v. Teevee Toons, Inc., 2007 U.S. Dist. LEXIS 6205 (N.D. Ga. Jan. 26, 2007), a case whose earlier proceedings I blogged about here. Wilchcombe involved a producer who created a song as an interlude for another performer’s rap album, wasn’t paid, and sued for copyright infringement and false advertising.

The court granted summary judgment against plaintiff’s copyright claim because it found that any reasonable jury would find that defendants had a nonexclusive oral license to use the work: the plaintiff knew that defendants planned to include the work in the album, submitted it to them for that purpose, and solicited their input to make it more suitable for the album. Plaintiff obviously has a breach of contract claim – he should be paid for his contribution – but not a federal copyright claim. (The court found that there were genuine issues of material fact about whether certain defendants were coauthors, based on changes they made to the work before putting it on the album. Coauthorship doesn’t relieve them of an obligation to pay; plaintiff would then have an interest in a share of the profits from the song. As far as I know, however, no one has litigated the case of the faithless coauthor who grants a zero-royalty license in order to harm the other coauthor, or in order to further his own individual interests, as might have happened here.)

Plaintiff’s false advertising claims had survived a motion to dismiss as sufficiently distinct from the reverse passing off claim rejected in Dastar. On summary judgment, however, as I expected, plaintiff couldn’t show the elements of a false advertising claim. Specifically, the court found that he hadn’t shown he was in competition with defendants (this is the only shaky part; he participates in the same market for rap recordings, so why wouldn’t he be a competitor as well as a collaborator?); hadn’t shown that the false credits were “commercial advertising or promotion,” since they were only visible to people who’d already purchased the album; hadn’t shown that the credits were material to consumers in any event; and hadn’t shown that he was likely to suffer harm from the false credits. A pretty comprehensive dismissal, reinforcing my conviction that the average Dastar-esque claim cannot be successfully repled as a false advertising claim. If an extraordinary false credit claim can meet these standards, then that’s good evidence that the law should grant a remedy in that unusual case.