Bridgeport Music, Inc. v. UMG Recordings, Inc., 2009 WL 3617470 (6th Cir. 2009)
This past summer there was a storm of discussion on the intertubes about whether fair use was a question that was appropriate for a jury, or whether it was exclusively the domain of judges. The question arose in Sony v. Tenenbaum when Judge Gertner asked the parties to brief whether “fair use was historically treated as an equitable defense and, if so, whether it is properly decided by the judge or a jury.”
The Court in Tennenbaum recognized that many courts have labeled fair use an equitable defense, and that generally equitable defenses, such as latches and acquiescence, historically were the province of judges, not juries. The Tenenbaum Court, however, noted that authorities on the issue were “conflicting” or “imprecise,” and that there has been a string of decisions finding that fair use is appropriate for a jury:
Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) (upholding special jury verdict finding that defendants’ use of films was fair use); BUC INt’l Corp. v. Int’l Yacht Council, 489 F.3d 1129, 1137 (11th Cir. 2007) (noting that fair use defense was presented to the jury); New York Univ. v. Planet Earth Found, 163 Fed. Appx 13 (2d. Cir. 2005) (upholding the jury’s fair use finding; see also Roy Export Co. Estab of Vaduz Liech Black Inc. v. Columbia Broad Sys. Inc., 503 F.Supp. 1137 (D.C.N.Y. 1980) citing Meeropol v. Nizer, 560 F.2d 1061, 1071 (2d. Cir. 1977) (characterizing fair use as a question for the jury to decide)); Harris v. San Jose Mercury News, Inc., No. C 04-05262 CRB, 2006 WL 995151, at 1 (N.D. Cal. Apr. 10, 2006) (raising fair use as a mixed question of law and fact, yet declaring the issue more appropriately resolved by a jury even when facts were not in dispute.)
William Patry also weighed in at the time on Tenenbaum’s counsel’s blog, stating that “[t]he occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees).”
Well, we can add another to the list of fair use jury cases. Bridgeport alleged that the song “D.O.G. in Me,” by the R&B group Public Announcement, a UMG recording artist, infringed George Clinton’s work “Atomic Dog.”A jury found UMG liable for infringement, rejecting a fair use defense.
On appeal, UMG argued that the District Court’s fair use charge was “erroneous” and “prevented the jury from considering its fair-use defense, i.e., that copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute and that a properly instructed jury would have concluded that the use of these elements for that purpose was fair.” The Sixth Circuit rejected the argument finding that the instructions were not erroneous:
Specifically, the defendant assigns error to the district court’s charge to the jury that an homage or tribute is “not necessarily fair use.” That charge is, however, an accurate statement of the law. See 17 U.S.C. § 107 (purpose and character of the use is only one factor); Campbell, 510 U.S. at 578-90 (weighing all factors in light of the purposes of copyright). Moreover, UMG failed to introduce any evidence that would have explained why the songwriter chose to include elements of “Atomic Dog” to honor George Clinton, nor was the purported tribute acknowledged in the credits or liner notes to the album.
Recent scholarship from the 
