BROADCAST OF PROMOTIONAL CD'S REQUIRES LICENSE

An Alabama District Court has held that a radio broadcast of recordings without an ASCAP license amounted to copyright infringement. The Court disagreed with the Defendant’s claim that the broadcast of a promotional CD was not an infringing use, and stated that while a CD itself could be promotional, the licensing of a public performance was not. In other words, when a copyright holder grants a recording company the right to make and distribute promotional copies, it does not necessarily include the right to publicly broadcast those promotional copies without paying the licensing fees is also granted. Simpleville Music v. Mizell, 451 F. Supp. 2d 1293; 2006 U.S. Dist. LEXIS 65944.


EQUITABLE DEFENSE AVAILABLE TO MGM

“Chitty Chitty Bang Bang” was the subject of a copyright infringement suit recently filed by the trustees of writer Ian Fleming’s estate. The suit against MGM claimed that upon the expiration of the initial term of copyright the rights reverted to the estate, which made MGM’s continued distribution of the movie based on Fleming’s story an infringement of is rights.

MGM acquired the rights to “Chitty Chitty Bang Bang” through a book trust created by Fleming, but the renewal right passed directly to Fleming’s estate. Under 17 U.S.C. §304, renewal rights pass to the executor of an author's estate when the author and his immediate family die during the initial term of copyright. Fleming’s estate sued because the rights no longer existed in the book trust; they belonged to the estate.

The District Court held that although the estate controlled the copyright to the story, MGM had spent millions to promote the movie since the renewal term had gone into effect. Additionally, because the estate did not file the claim until years after the renewal term took effect, the Court held that the defense of equitable estoppel was available to MGM. Legislator 1357 Ltd. v. MGM, 452 F. Supp. 2d 382; 2006 U.S. Dist. LEXIS 67799.