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Intellectual Property

Beware the Copyright Boogeyman: He Might Be Listening in Your Restaurant

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 of law.

Where There Are Ears, There Is Also Evidence

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.

In Range Road Music, Inc. v. East Coast Foods, Inc., 2012 U.S. App. LEXIS 3173 (9th Cir. Cal. Feb. 16, 2012) [enhanced version available to subscribers], East Coast argued that summary judgment was inappropriate because:

1. Greene's identification of copyrighted compositions was expert testimony by a lay witness that should have been excluded; and

2. plaintiffs failed to prove "substantial similarity" between the publicly performed compositions and the copyrighted works.

A Witness Doesn't Have to be Mozart to Know Music

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.

There's Something Fishy about This Substantial Similarity Argument

The court also rejected the second argument as a "red herring." The court stated:

"Substantial 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 publicly performed.

(citations and footnotes omitted) 

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