On this day in 1787, delegates to the Constitutional Convention in Philadelphia signed the U.S. Constitution. The framers recognized the importance of promoting the public’s interest in innovation and the arts. Article I, Section 8, Clause 8 give Congress the power:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Happy Constitution Day!

The ABA and the National Constitution Center have provided online educational resources here and here, respectively.

On this day in 1985, the New York Supreme Court held that John McEnroe was not liable for threatening, and then taking a swing towards, a fan at the U.S. Open. In Schneider v. McEnroe, the court considered whether McEnroe was liable for intentional infliction of emotional distress, assault, and battery. During a match at the U.S. Open, a fan repeatedly cheered for McEnroe’s opponent. McEnroe confronted the fan throughout the match, asking him if he had anything better to do than cheer McEnroe’s opponent, if he was going to cheer McEnroe’s opponent all day, etc. After the fan answered that he was going to continue to cheer for McEnroe’s opponent and that he didn’t have anything better to do, McEnroe called the fan “a fuckin’ asshole.” After the fan continued to cheer against McEnroe, McEnroe shouted, “You are sick, you are sick, you are ill, you are ill. I want to fight you, fight me now, meet me later. I am going to get you.” Shortly after this tirade, McEnroe made a motion with his arm towards the fan, described by the court as “sw[inging] his left arm in an upward movement in what might be described as a left-handed bowler’s follow-through or 1/2 of a two-handed obscene gesture.” As a result of the gesture, some rosin was released from McEnroe’s hand; a speck landed in the plaintiff’s eye. The court found McEnroe’s behavior to be childlike, ill-mannered, and unimaginative, but not actionable.

Intentional infliction of emotional distress requires that conduct be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” The court said that McEnroe’s behavior was “shabby,” but his conduct did not rise to the level required to satisfy intentional infliction of emotional distress.

Assault requires that the defendant be placed “in apprehension of imminent harmful or offensive contact.” Mere threats or words are not enough. The court said that there was no indication that the plaintiff had any doubts about his safety during these incidents. Therefore, McEnroe could not be held liable for assault.

Battery requires intentional contact that is harmful or offensive to the plaintiff. “Harmful” is defined as “conduct which causes pain or illness.” “Offensive” is defined as that which “offends a reasonable sense of personal dignity.” The court found that the intentional contact element was satisfied because a speck of rosin got into the plaintiff’s eye. However, the court said that the contact was neither harmful nor offensive. The contact was not harmful because the plaintiff suffered no injury to his eye other than minimal discomfort. The contact was not offensive because a speck of rosin in the eye does not offend a reasonable sense of personal dignity. Therefore, an action for battery could not be sustained, and the $6 million suit was dismissed.

Yesterday, the U.S. Court of Appeals for the 9th Circuit held that Eminem’s recording contract requires Universal Music Group to pay a 50% royalty rate on the artist’s digital downloads and ringtones. In 1998, F.B.T. Productions, the label that had originally signed Eminem, entered into an agreement with Aftermath Entertainment (Dr. Dre’s record label and a subsidiary of Universal Music Group). The agreement transferred Eminem’s exclusive recording services to Aftermath. The issue in this case was whether the “Records Sold” provision or the “Masters Licensed” provision of this agreement should be applied in determining the royalty rate for permanent downloads and “mastertones” (ringtones) of Eminem’s songs. The Records Sold provision requires Aftermath Entertainment to pay a royalty rate between 12% and 20% on “full price records sold in the United States … through normal retail channels.” The Masters Licensed provision states, “[n]otwithstanding the foregoing,” Aftermath is required to pay 50% of net receipts “[o]n masters licensed by [Aftermath] … to others for their manufacture and sale of records or for any other uses.” UMG claimed that the “Records Sold” provision should apply. F.B.T. claimed that the Master License provision is unambiguous and should apply. The Court agreed with F.B.T:

[T]he Masters Licensed provision explicitly applies to (1) masters (2) that are licensed to third parties for the manufacture of records ‘or for any other uses,’ (3) ‘notwithstanding’ the Record Sold provision. This provision is admittedly broad, but it is not unclear or ambiguous.

The Court noted that the word “notwithstanding” means that even if digital downloads could fall within the scope of the Records Sold provision, the 50% rate would apply if the Masters Licensed provision is satisfied – i.e., if Aftermath licensed an Eminem master to a third party for any use.

The Records Sold provision would only apply in instances where there was an actual sale by Aftermath. The Court said that in the case of digital downloads or ringtones, no sale by Aftermath took place. Rather, the masters are licensed by Aftermath to a third party, such as iTunes, for the third party to sell downloads and ringtones:

Aftermath did not ‘sell’ anything to the download distributors. The download distributors did not obtain title to the digital files. The ownership of those files remained with Aftermath. . .

Therefore, because there was no ambiguity in the contractual language, because no sale by Aftermath took place, and because the terms of the Masters Licensed provision were satisfied, the Court held that Aftermath is obligated to pay the 50% royalty rate under the Masters Licensed provision.

UMG has said that it will request a full rehearing from the 9th Circuit.

You can access the opinion to the case, F.B.T. Productions, LLC v. Aftermath Records, here

On this day in 1988, the Ninth Circuit held that “The A-Team” did not infringe the copyright of a television series pilot. In Olson v. National Broadcasting Company, Inc., the court considered whether the hit television show “The A-Team” was substantially similar to a TV pilot called “Cargo.” As described in previous posts, a two-part test is used to determine whether a work is substantially similar to another: the subjective “intrinsic test” and the objective “extrinsic test.” The intrinsic test looks at the concept and feel of the works as a whole. The extrinsic test compares plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.

The court acknowledged that both “Cargo” and “The A-Team” shared a common idea: “Both are a group action-adventure series designed to show Vietnam veterans in a positive light.” However, mere ideas are not protectable under copyright law, and the the extrinsic test “looks beyond the vague, abstracted idea of a general plot.” The court found similarities between the pace, characters, and mood. Both shows were quick-paced and comic in nature. But the court noted that these characteristics are common among action-adventure shows. The court also found similarities between the characters, but noted that the “Cargo” characters were not protectable because the characters were not developed or distinctive enough. The court found little similarity between the two works in terms of plot, sequence, dialogue or setting.

The court further held that there was no substantial similarity under the intrinsic test because all similarities that did exist between the two shows existed from unprotectable scenes a faire.