During the SXSW panel “Litigation: The Cases We Need to Know,” D’Lesli Davis, a partner in the Dallas office of Norton Rose Fulbright, and Stan Soocher, associate professor of music and entertainment industry studies at the University of Colorado Denver, offered an overview of some legal situations currently impacting entertainment law. In their allotted hour, they walked attendees through a number of specific cases, including the following selections.
Gaga, ooh law law
Wendy Starland v. Rob Fusari
When Lady Gaga burst onto the music scene in the late 2000s, her stellar voice, stage dramatics, and avant-garde sense of style drove her to become one of the world’s most predominant musicians—perhaps more popular than her producer Rob Fusari could have imagined. Before Gaga achieved fame, Fusari made an oral agreement to split his revenues earned from the singer with the person who discovered her.
That person was Wendy Starland, who found Gaga in 2006 and brought her to meet Fusari. Their relationship eventually soured and, citing that verbal arrangement, Starland sued Fusari in 2010 for her portion of the proceeds from Gaga’s work. In November 2014, a federal court granted Starland a little more than $7 million.
Spoken deals are common in the entertainment industry, noted the panelists, but most often they don’t have such big names behind them. “How many times do you hear from your potential clients about deals like that, and they just don’t come to fruition?” posed Davis. “But how scary is it that this $7.4 million finding was riding on that one person’s testimony of one side of a conversation?”
Soocher also noted that in the case there was a multitude of ways that a statute of frauds in the oral agreement could be interpreted. The statute is only enforceable if it can be performed in one year; at what point could that one-year period start? When Starland walked into the room and discovered Gaga? When she brought her to Fusari? When recording started? “Obviously, this needs to be more formalized,” Soocher said.
Give it up
Gaye v. Thicke
Just days before SXSW, a court awarded $7.3 million to the family of Marvin Gaye as the result of the contentious and highly publicized Gaye v. Thicke copyright case. “When was the last copyright infringement case that got this much media attention?” Soocher asked. “Maybe not any because of social media.”
At issue was Robin Thicke and Pharell Williams’ 2013 hit “Blurred Lines,” which Gaye’s heirs claimed was taken from Gaye’s 1977 tune “Got To Give It Up.” (See a mashup of the songs here.) During the trial, the defense was clinging to the idea that ruling against them would squelch future creativity, said Davis, who was previously a partner in King & Ballow, which served the plaintiffs. Still, after the verdict, an attorney for the plaintiffs maintained that they proved the melodic elements were copied.
“Whether you think that this is good law or bad law, I bet most of the people in this room would say that the feel of the two songs is similar,” Davis said.
Another factor at play? Thicke changed his narrative. In the beginning, he asserted that he and Williams collaborated to write the song in half an hour, but during his deposition, Thicke said he had nothing to do with creating the song. “It’s real easy for juries to pick out liars when the testimony is changed,” Davis said. Now, the panelists pondered, will Williams file suit for the money Thicke received for writing the song despite declaring under oath that he had no responsibility for it?
Cummings v. Soul Train Holdings, L.L.C.
Opening with a clip of the band the Blue Notes performing in the 1970s, Davis and Soocher introduced the case of Cummings v. Soul Train Holdings, L.L.C. When episodes of the show The Soul Train featuring Blue Notes member Jeremiah Cummings were put on DVD for sale and distribution, Cummings sued, noting that he had not signed an agreement to use his right of publicity and that the recordings were misused.
Right of publicity cases are tested under state law, explained Soocher, so while Cummings filed suit in New York, as a resident of Illinois, his case was considered under the Illinois Right of Publicity Act, which recognizes the statutory right but not a separate common law misappropriation claim. There is an exception of the use of an individual’s identity during a live performance so long as the use is not in a commercial. The court ruled that Cummings’ specific exception overrides any right of publicity and the case was dismissed.
“If you look at the New York and California statutes, they don’t have this specific language,” Soocher said. “I do want to say that the song they are singing is ‘Bad Luck.’”
You can see a full list of topics discussed during the panel here.