Ex©lusive Rights

House of Bryant Publications, LLC v. A & E Television Networks, 2009 WL 3673055 (M.D. Tenn. 2009)

The Plaintiff was the copyright owner of the musical composition “Rocky Top,” the state song of Tennessee. The Defendant, cable television network A&E, was involved in the production and distribution of a show City Confidential.  One episode from the show, which ran around forty-seven minutes in length, featured a section on Knoxville, Tennessee’s cultural scene (“and, as the stark-raving orange clad masses will attest, they play a little football too.”)

The show featured the UT marching band playing “Rocky Top” for six to seven seconds, where the song was clearly heard; and then, after a break of five to six seconds, the song reappeared less prominently for another six to seven seconds. The Plaintiff brought suit alleging that A&E’s use of the “Rocky Top” in the program was an unauthorized infringing use. A&E moved to dismiss arguing fair use, which the Court denied.

Judicial notice

The Plaintiff filed its complaint without attaching a copy of “Rocky Top” or the allegedly infringing show. A&E asked the Court to take judicial notice of the sheet music and it’s television show so that it’s motion to dismiss wouldn’t be converted into a motion for summary judgment.  Federal Rule of Civil Procedure 12(d) states that if “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6) ] motion must be treated as one for summary judgment under Rule 56.”

The Court found that the discussion of judicial notice was unnecessary and instead found that it could consider the sheet music and the television episode part of the pleadings:

[U]nder certain circumstances, material “that is not formally incorporated by reference or attached to a complaint may still be considered part of the pleadings.” Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir.1999) (internal citations and quotations omitted) (discussing “documents” not attached to the complaint, but not limiting the potential scope of the rule thereto). This occurs when material “is referred to in the complaint and is central to the plaintiff’s claim…. In such event, the defendant may submit an authentic copy to the court to be considered on a motion to dismiss, and the court’s consideration of the [material] does not require conversion of the motion to one for summary judgment.” Id. The Sixth Circuit has also noted that “a defendant may introduce certain pertinent documents if the plaintiff fails to do so…. Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied.” Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir.1997).

Fair use

The Court, perhaps looking to encourage a settlement,  found that dismissing the claims on fair use grounds was improper at the stage of the proceedings.  Both the Plaintiffs and A&E used Lennon v. Premise Media Corp., 556 F.Supp.2d 310 (S.D.N.Y.2008) as precedent.  In that case, Lennon’s estate sued the producers and directors of a movie over the unauthorized use of fifteen seconds of “Imagine.” The filmmakers used the song as a background during a section of their movie that argued that scientists who advocate  society should abandon religion were “lifting a page of John Lennon’s songbook.” The Court in House of Bryant distinguished the current case from Lennon, where the S.D.N.Y. found the use was transformative, on the grounds that in Lennon there were affidavits and declarations identifying transformative aspects:

Here, because the defendant seeks the dismissal of the plaintiff’s Complaint without the benefit of discovery, there is nothing to “ease” the court’s task of finding a transformative use. Moreover, in contrast with Lennon, the transformative nature of “Rocky Top” is unapparent from a basic viewing of the Episode. In the Episode, there is no allusion to “Rocky Top” prior to its playing, and there is no perceptible attempt to actually place “Rocky Top” in any sort of larger context. As indicated above, just before “Rocky Top” plays, there is a general discussion of UT being a haven for college football, but there is no commentary, criticism or even discussion of “Rocky Top.” Rather, basically, the excerpt from “Rocky Top” simply plays, fades, and then stops, and the Episode moves on to the next topic.