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It goes without saying that an establishment's music is
there for the listening patrons. But amongst those patrons - beware! The audience
might contain an infiltrator - a listening witness. And while this witness might
not be the boogeyman's equivalent, he or she could prove very scary in a court
East Coast Foods, Inc. owns and operates the Roscoe's
House of Chicken and Waffles restaurant chain in Southern California. These
restaurants have an attached bar and lounge where music is played.
The American Society of Composers, Authors, and
Publishers (ASCAP) offered East Coast a license to perform music by ASCAP
members. When East Coast refused, ASCAP engaged an independent investigator,
Scott Greene, to visit the Long Beach Roscoe's, make notes of his visit, and
prepare a detailed investigative report indicating whether copyright
infringement was occurring. During his visit, Greene:
personally identify the jazz
compositions "All or Nothing at All" "It's Easy To
Remember" "My Favorite Things" and "Be-Bop" all
popularly associated with John Coltrane. In several cases, the band leader
announced the titles of the songs before playing them. Greene also identified
four songs by the jazz-fusion group Hiroshima that played on the venue's CD
player: "Bop-Hop" "Once Before I Sleep" "One Fine
Day" and "Only Love" He did not personally recognize the
Hiroshima songs, but he approached the CD player and transcribed the titles
directly from the CD jewel case as the songs played.
ASCAP confirmed that the identified songs were copyright
protected. East Coast was sued for copyright infringement, and the district
court granted plaintiffs summary judgment. East Coast suffered $36,000 in statutory damages and $162,728.22 in
attorney's fees and costs.
Road Music, Inc. v. East Coast Foods, Inc., 2012 U.S. App. LEXIS 3173 (9th
Cir. Cal. Feb. 16, 2012) [enhanced version available to lexis.com subscribers], East Coast argued that summary judgment was inappropriate
identification of copyrighted compositions was expert testimony by a lay
witness that should have been excluded; and
failed to prove "substantial similarity" between the publicly
performed compositions and the copyrighted works.
The court rejected the first argument, holding that
Greene was not an expert. Rather, as the court noted, "Green's report and
declaration contained his competent percipient witness testimony as a visitor
to the Long Beach Roscoe's." In distinguishing between expert and lay
testimony, the court stated:
Identifying popular songs
does not require "scientific, technical, or other specialized
knowledge." Fed. R. Evid. 702. On the contrary, identifying music is a
reflexive daily process for millions of radio listeners, amateur karaoke
singers, and fans of Name That Tune
reruns. See Fed. R. Evid. 701 advisory committee's note ("[T]he
distinction between lay and expert witness testimony is that lay testimony
results from a process of reasoning familiar in everyday life, while expert
testimony results from a process of reasoning which can be mastered only by
specialists in the field.") (quotation marks and citations omitted).
Moreover, many of Greene's identifications did not even require him to tax his
memory: the live band announced the titles of several of the compositions they
covered, and Greene transcribed other titles directly from a CD jewel case.
The court also rejected the second argument as a "red
herring." The court stated:
similarity" is not an element of a claim of copyright infringement.
Rather, it is a doctrine that helps courts adjudicate whether copying of the
"constituent elements of the work that are original" actually
occurred when an allegedly infringing work appropriates elements of an original
without reproducing it in toto. A
showing of "substantial similarity" is irrelevant in a case like this
one, in which the Music Companies produced evidence that the public performances
entailed direct copying of copyrighted works. ...
... the proper question is
whether infringing performances occurred vel
non. And on that question, East Coast and Hudson cannot raise a genuine
issue of material fact. Greene's declaration, detailed investigative report,
and deposition testimony were sufficient to establish that the works were
(citations and footnotes omitted)
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