Copyright Law Blog: Exclusive Rights

Category Archives: Jury Instructions

6th Cir. finds that jury fair use instructions not erroneous

Shourin Sen - 10 November 2009 – 9:00 am

Bridgeport Music, Inc. v. UMG Recordings, Inc., 2009 WL 3617470 (6th Cir. 2009)

This past summer there was a storm of discussion on the intertubes about whether fair use was a question that was appropriate for a jury, or whether it was exclusively the domain of judges. The question arose in Sony v. Tenenbaum when Judge Gertner asked the parties to brief whether “fair use was historically treated as an equitable defense and, if so, whether it is properly decided by the judge or a jury.”

The Court in Tennenbaum recognized that many courts have labeled fair use an equitable defense, and that generally equitable defenses, such as latches and acquiescence, historically were the province of judges, not juries. The Tenenbaum Court, however, noted that authorities on the issue were “conflicting” or “imprecise,” and that there has been a string of decisions finding that fair use is appropriate for a jury:

Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) (upholding special jury verdict finding that defendants’ use of films was fair use); BUC INt’l Corp. v. Int’l Yacht Council, 489 F.3d 1129, 1137 (11th Cir. 2007) (noting that fair use defense was presented to the jury); New York Univ. v. Planet Earth Found, 163 Fed. Appx 13 (2d. Cir. 2005) (upholding the jury’s fair use finding; see also Roy Export Co. Estab of Vaduz Liech Black Inc. v. Columbia Broad Sys. Inc., 503 F.Supp. 1137 (D.C.N.Y. 1980) citing Meeropol v. Nizer, 560 F.2d 1061, 1071 (2d. Cir. 1977) (characterizing fair use as a question for the jury to decide)); Harris v. San Jose Mercury News, Inc., No. C 04-05262 CRB, 2006 WL 995151, at 1 (N.D. Cal. Apr. 10, 2006) (raising fair use as a mixed question of law and fact, yet declaring the issue more appropriately resolved by a jury even when facts were not in dispute.)

William Patry also weighed in at the time on Tenenbaum’s counsel’s blog, stating that “[t]he occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees).”

Well, we can add another to the list of fair use jury cases. Bridgeport alleged that the song “D.O.G. in Me,” by the R&B group Public Announcement, a UMG recording artist, infringed George Clinton’s work “Atomic Dog.”A jury found UMG liable for infringement, rejecting a fair use defense.

On appeal, UMG argued that the District Court’s fair use charge was “erroneous” and “prevented the jury from considering its fair-use defense, i.e., that copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute and that a properly instructed jury would have concluded that the use of these elements for that purpose was fair.” The Sixth Circuit rejected the argument finding that the instructions were not erroneous:

Specifically, the defendant assigns error to the district court’s charge to the jury that an homage or tribute is “not necessarily fair use.” That charge is, however, an accurate statement of the law. See 17 U.S.C. § 107 (purpose and character of the use is only one factor); Campbell, 510 U.S. at 578-90 (weighing all factors in light of the purposes of copyright). Moreover, UMG failed to introduce any evidence that would have explained why the songwriter chose to include elements of “Atomic Dog” to honor George Clinton, nor was the purported tribute acknowledged in the credits or liner notes to the album.

Jury instructions in infringement suit over Menopause, the Musical’s theater program not grounds for new trial

Shourin Sen - 16 April 2009 – 9:00 am

Filed under Jury Instructions, Registration

Thornton v. J Jargon Co., 2009 WL 980804 (M.D. Fla. 2009)

“Menopause, the Musical” is a poplar stage show. According to Wikipedia, which is never wrong, a “significant” portion of the show’s audience consists of members of the Red Hat Society. (As best I can tell, the Red Had Society is a cross between the tea baggers and the Hells Angels.) The plaintiff in this action alleged that the theater programs for “Menopause, the Musical” contained a one-page “Take the Age Test” that was an unauthorized reproduction of his work, the “Official Baby Boomer Qualifying Exam.”

After a six day trial, a jury returned a verdict finding no direct or contributory copyright infringement. The Plaintiff moved for a new trial arguing, among other things, that the Court improperly refused to issue a supplementary jury instruction in response to jury question. The Court explained:

During their deliberations, the jury asked the Court the following question: “Is copyright retroactive from date of application? Should it matter?” Plaintiff requested that the following answer be given: “[C]opyright protection comes into existence the day that it’s authored and that registration is merely a formality.” The Court declined to issue a supplemental instruction and instead referred the jury to the Court’s Jury Instructions.

* * * * *

In the instant motion, Plaintiff argues that because Defendants distributed the Age Test in theater programs before Plaintiff registered his copyright, the jury erroneously thought that Plaintiff’s copyright was not protected at the time of the alleged infringement. However, the Court’s Jury Instructions implicitly answered the jury’s question because the instructions provided: “The Court has determined, as a matter of law, that the plaintiff owns a copyright in [the BBQE], as registered with the U.S. Copyright Office.” (Dkt. 183 at 7). In addition, in stating the two elements of direct infringement, the Court instructed the jury: “[First element] Plaintiff owns a valid copyright in the work (which the Court has already determined).” This left for the jury’s consideration only the second element of whether Defendants copied constituent elements of the BBQE that were original. As discussed, there was sufficient evidence supporting the jury’s finding that Plaitniff did not meet his burden on this element.

The “extent and character of additional instructions is within the sound discretion of the trial court” and “the judge may sometimes simply refer the jury back to his earlier instructions.” United States v. Mejia, 82 F.3d 1032, 1037 (11th Cir.1996). For the above stated reasons, the Court denies Plaintiff’s motion for a new trial based on the failure to issue a supplemental instruction on the retroactivity of Plaintiff’s copyright.

To the extent Plaintiff argues that this Court should have given Plaintiff’s Proposed Jury Instruction[s], pursuant to Rule 51 of the Federal Rule of Civil Procedure, a party objecting to an instruction must do so on the record and may assign as error only those errors to which the party properly objected. Fed.R.Civ.P. 51(c)-(d). “This rule exists ‘to prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time.” Ford ex rel Estate of Ford v. Garcia, 289 F.3d 1283, 1288 (11th Cir.2002) (quoting Pate v. Seaboard R.R., 819 F.2d 1074, 1082 (11th Cir.1987)). The only exception to this rule is when there is plain error affecting substantial rights. Fed.R.Civ.P. 51(d). For the reasons set forth, the omission of Plaintiff’s Proposed Jury Instruction No. 1 did not affect Plaintiff’s substantial rights, as the jury was instructed that Plaintiff had held a valid copyright, as a matter of law.