The Karaoke Case: Fair Use or Infringement To A Fair-Thee-Well?

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At some point early on in a copyright lawyer's career (or at least in this copyright lawyer's career), usually while you are seated in a chain restaurant listening to the waiters sing an unfamiliar birthday song to the beaming fellow at the next table, that mental lightbulb blinks on as you realize, "They aren't singing the Happy Birthday song because it's still covered by copyright, this is a commercial establishment, and they'd have to pay royalties."  And then you connect the dots to the "fair use" doctrine, realizing you can still sing it at home or at a friend's house without fear of a visit from an ASCAP goon.

Take that thought over to the realm of Karaoke, which is the subject of a fascinating recent decision by the Sixth Circuit in Zomba Enterprises, Inc. v. Panorama Records, Inc.  As Circuit Judge Karen Nelson Moore astutely observes in her opening paragraph:

Countless people have lined up at various venues to perform their favorite songs with, and in front of, their friends. But few participants (with the possible exception of IP lawyers) ever stop to consider the intellectual property regime governing karaoke.

While the decision offers important insights on various copyright topics, including calculation of statutory damages, the "fair use" discussion will, if nothing else, make you admire the moxie of the defendant's attorneys -- or at least make you sympathize with their plight.

Because there was no dispute that the defendant had engaged in unauthorized copying by selling karaoke-ready CDs containing plaintiff's music and lyrics to bars and other venues, a "fair use" defense was the defendant's only hope.  At the trial level, the defendant's lawyers argued the karaoke packages were "transformative" because they "encourage creativity and often commentary" among their end-users.  Having been rebuffed at trial on that ground, they shifted on appeal to argue that the use was transformative because the karaoke packages are used for "teaching" -- an argument the Sixth Circuit labeled "wholly  meritless." In addition to the fact that the record was bereft of evidence that the products were ever used for teaching, the Sixth Circuit pointed out that under the "fair use" doctrine "the end-user's utilization of the product is largely irrelevant; instead, the focus is on whether the alleged's infringer's use is transformative and/or commercial."

While no lawyer, copyright or otherwise, enjoys having a court of appeals label his position "wholly meritless," at least these lawyers fared better than defense counsel in the earlier "fair use" case of Dr. Seuss Enterprises, L.P., V. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), where the publishers of this spoof of the O.J. Simpson case got sued by Dr. Seuss Enterprises, owners of the copyright in the original.  The Ninth Circuit described the publisher's attorneys struggle to satisfy the  "parody" version of "fair use" as follows (109 F.3d at 1402-03):

In their Opening Brief, Penguin and Dove characterize The Cat NOT in the Hat! ("Parody") as follows: "The Parody is a commentary about the events surrounding the Brown/Goldman murders and the O.J. Simpson trial, in the form of a Dr. Seuss parody that transposes the childish style and moral content of the classic works of Dr. Seuss to the world of adult concerns. The Parody's author felt that, by evoking the world of The Cat in the Hat, he could: (1) comment on the mix of frivolousness and moral gravity that characterized the culture's reaction to the events surrounding the Brown/Goldman murders, (2) parody the mix of whimsy and moral dilemma created by Seuss works such as The Cat in the Hat in a way that implied that the work was too limited to conceive the possibility of a real trickster "cat" who creates mayhem along with his friends Thing 1 and Thing 2, and then magically cleans it up at the end, leaving a moral dilemma in his wake"

The Ninth Circuit's response?

We completely agree with the district court that Penguin and Dove's fair use defense is "pure shtick" and that their post-hoc characterization of the work is "completely unconvincing."

Ouch.

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