On this day in 2005, an 85-year-old woman sued the maker of the video game “Grand Theft Auto: San Andreas” for failing to tell consumers that it contained hidden, sexually explicit scenes. The plaintiff, who bought the game for her 14-year-old grandson, claimed that Rockstar Games, and its parent company, Take-Two Interactive Software Inc., engaged in consumer deception, false advertising, common law fraud, and unjust enrichment.

The company had failed to notify consumers that within the regular game, players were able to enable and access a hidden minigame in which one character invites the other in for coffee. In this “Hot Coffee” minigame, players could watch the characters have sex. The game had been given an “M” (mature) rating by the ESRB, but would have received an “AO” (adult only) rating had the self-regulatory organization known about the hidden material. The case was granted class action status and was consolidated as In Re Grand Theft Auto Video Game Consumer Litigation v. Take-Two Interactive Software, Inc. et al. The FTC also launched its own investigation. The agency subsequently filed a complaint (pdf) against Take-Two and its Rockstar subsidiary. The class action case was eventually settled for roughly $20 million. The game maker also reached a settlement with the FTC.

On this day in 1983, a federal court held that the Bee Gees’ “How Deep Is Your Love” did not infringe the copyright to Ronald H. Selle’s “Let It End.” In Selle v. Gibb, the Seventh Circuit considered whether the Bee Gees copied Selle’s song for their 1970s hit “How Deep Is Your Love.” To establish a claim for copyright infringement of a musical composition, the plaintiff must prove 1) ownership of the copyright of the work that is allegedly infringed, 2) originality of the work, 3) copying of the work by the defendant, and 4) substantial similarity between the two works. The court only looked to the third element, copying of the work, because the first two elements were conceded and the fourth was closely related to the third element in this case. A plaintiff may prove copying by showing direct evidence of copying, which is rarely available, or circumstantial evidence. Circumstantial evidence may be proved by demonstrating that the defendant had access to the work. And even if there is no evidence of access, then an inference of access may be established by proving that a similarity of the two works is “so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.” Striking similarity means that the “similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source.”

Here, the court found that there was only a remote possibility that the Bee Gees could have had access to Selle’s song. Selle’s song was only performed a handful of times in Chicago. Selle had sent a tape and the sheet music to various publishing and recording companies. However, the Bee Gees composed the “How Deep Is Your Love” in a chateau near Paris, their composition process was recorded on tape, and, the court further noted, none of the band members could read music. The court also did not find the two works to meet the definition of “striking similar.” The lower court’s grant of summary judgment in favor of the Bee Gees was affirmed.

UCLA Law & Columbia Law School’s Copyright Infringment Project has a nice side-side-comparison and superimposition of the two works. You can access the page here.

KCRW’s “The Business,” a radio program about the entertainment business, has a nice segment on the recent jury verdict in Celador Intern. Ltd. v. Walt Disney Co., the profit participation case in which Disney was ordered to pay nearly $270 million in damages to the British production company that created “Who Wants to Be a Millionaire.” Here’s the link.

On this day in 1988, a California court held that CBS Records and Ozzy Osbourne were not liable for the suicide of a teenager who killed himself while listening to Osbourne’s music. In McCollum v. CBS, Inc., the parents of a teenager who killed himself while listening to Ozzy Osbourne’s album “Speak of the Devil” brought suit against CBS and Osbourne, claiming that the music and lyrics were the proximate cause of the teenager’s suicide. They claimed that the defendants “(1) were negligent in the dissemination of Osbourne’s recorded music, (2) intentionally disseminated that music with knowledge that it would produce an uncontrollable impulse to self-destruction in persons like [the teenager] and (3) intentionally aided, advised or encouraged [the teenager's] suicide in violation of [California's] Penal Code section 401. The defendants claimed that the First Amendment protected them from any liability. The California Court of Appeals considered whether Osbourne’s music was an incitement to illegal activity, and therefore outside the scope of First Amendment protection. Under the Brandenburg test, speech may be punished or restrained if (1) it is directed to inciting imminent lawless action, and (2) it is likely to produce such action. The court found that Osbourne’s music was not directed or intended to bring about the imminent suicide of listeners, and that the music was not likely to produce such a result:

[T]here is nothing in any of Osbourne’s songs which could be characterized as a command to an immediate suicidal act. . . Moreover. . . the lyrics of the song on which plaintiffs focus their primary objection can as easily be viewed as a poetic device, such as a play on words, to convey meanings entirely contrary to those asserted by plaintiffs. . .

Merely because art may evoke a mood of depression as it figuratively depicts the darker side of human nature does not mean that it constitutes a direct ‘incitement to imminent violence.’ The lyrics sung by Osbourne may well express a philosophical view that suicide is an acceptable alternative to a life that has become unendurable — an idea which, however unorthodox, has a long intellectual tradition. If that is the view expressed, as plaintiffs apparently contend, then defendants are constitutionally free to advocate it.

The court further concluded that the negligence claim failed because Osbourne and CBS owed no duty to the plaintiffs; the intentional torts claims failed because there was no showing that Osbourne intended to cause the teenager’s, or any other listener’s, suicide.

On this day in 2001, a New York federal court held that Random House could not prevent Rosetta Stone from selling some of the publisher’s works in ebook format. In Random House, Inc. v. Rosetta Books, LLC, Random House had sought to enjoin Rosetta Stone from selling eight works by Kurt Vonnegut, William Styron, and Robert B. Parker in ebook format. Random House claimed that the authors had already granted it these digital rights. The District Court for the Southern District of New York disagreed. The Court said that the contractual language in the licenses granting Random House the right to “print, publish and sell the work[s] in book form” was understood to be a limited grant within the industry, and therefore did not include the right to publish the works as ebooks.

The Court distinguished this case from two other important Second Circuit “new use” cases involving technologies developed after the licensing contract was made: Bartsch v. Metro-Goldwyn-Mayer, Inc. and Boosey & Hawkes v. Walt Disney Co. (In Bartsch, the Second Circuit held that the motion picture rights to “Maytime” were broad enough to cover television broadcast. In Boosey, the court found that the motion picture rights to use Igor Stravisnky’s “Rite of Spring” in “Fantasia” were broad enough to cover the release in video format.) First, the Court found that the grant language in the previous cases was far broader than the language used in the Random House licenses. Second, the Court reasoned that the “new uses” in Boosey and Bartsch fell within the same medium, whereas the “new use” of an ebook constitutes an entirely different medium than the traditional paper book:

Ebooks take advantage of the digital medium’s ability to manipulate data by allowing ebook users to electronically search the text for specific words and phrases, change the font size and style, type notes into the text and electronically organize them, highlight and bookmark, hyperlink to specific parts of the text, and, in the future, to other sites on related topics as well, and access a dictionary that pronounces words in the ebook aloud. The need for a software program to interact with the data in order to make it usable, as well as the need for a piece of hardware to enable the reader to view the text, also distinguishes analog formats from digital formats.

Third, the Court noted that in the motion picture cases the licensees created new works based on the licensed material. In contrast, the book publisher merely edits and publishes the material created by the author. Lastly, the Court found that the policy rationale for encouraging development in new technology was just as well-served by finding that the authors retained the rights: “In the 21st century, it cannot be said that licensees such as book publishers and movie producers are ipso facto more likely to make advances in digital technology than start-up companies.”

The Second Circuit affirmed on appeal.

The Hollywood Reporter, Esq. blog notes that an Australian judge has ordered the band Men at Work to pay royalties for its unauthorized use of a children’s song in the band’s 1980s hit “Down Under.” In February, the court ruled in Larrikin Music v. EMI Songs Australia that the flute riff to the song infringed the copyright in “Kookaburra Sits in the Old Gum Tree.” The BBC has a helpful side-by-side comparison of the two works. EMI is appealing February’s decision.

The Copyright Infringement Project (sponsored by UCLA’s Intellectual Property Project and Columbia Law School) has more on this case here. You can download February’s infringement decision here (pdf).

On this day in 1984, a federal court held that the motion picture “E.T.” did not infringe the copyright to the play “Lokey from Maldemar.”

In Litchfield v. Spielberg, the 9th Circuit considered whether Steven Spielberg’s “E.T.: The Extra-Terrestrial” was substantially similar to a one-act musical play about two aliens stranded on earth. As described in a previous post, to prove infringement, the plaintiff must show that the two works are substantially similar in both ideas and expression. The objective extrinsic test is used to evaluate the similarity between ideas. The extrinsic test compares specific elements such as plot, theme, dialogue, mood, setting, pace and sequence. The subjective intrinsic test is used to evaluate the similarity of expression, and focuses on the response of the “ordinary reasonable person” to the works. The court found no substantial similarity between the sequences of events, mood, dialogue and characters of the two works. It further noted, “[a]ny similarities in plot exist only at the general level for which plaintiff cannot claim copyright protection.” The court saw even less similarity of expression: “Whereas E.T. concentrates on the development of the characters and the relationship between a boy and an extra-terrestrial, Lokey uses caricatures to develop its theme of mankind divided by fear and hate. No lay observer would recognize E.T. as a dramatization or picturization of Lokey.” The court found that no reasonable jury could conclude that Lokey and E.T. were substantially similar in their ideas and expression, and, therefore, dismissed the case on summary judgment.