677 F.2d 180 (2nd Cir. 1981), 934, MCA, Inc. v. Wilson

Docket Nº:934, 935, Dockets 80-7776, 80-7886.
Citation:677 F.2d 180
Party Name:287 MCA, INC., d/b/a MCA Music, a division thereof, Plaintiff-Appellee, v. Earl WILSON, Jr., Phil Oesterman, Billy Cunningham, LMPC Music Co., LibraRecords, The Libra Company, Art D'Lugoff d/b/a The Village Gate, Defendants, Earl Wilson, Jr., Arthur D'Lugoff, Defendants-Appellants.
Case Date:July 30, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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677 F.2d 180 (2nd Cir. 1981)


MCA, INC., d/b/a MCA Music, a division thereof, Plaintiff-Appellee,


Earl WILSON, Jr., Phil Oesterman, Billy Cunningham, LMPC

Music Co., LibraRecords, The Libra Company, Art

D'Lugoff d/b/a The Village Gate, Defendants,

Earl Wilson, Jr., Arthur D'Lugoff, Defendants-Appellants.

Nos. 934, 935, Dockets 80-7776, 80-7886.

United States Court of Appeals, Second Circuit

July 30, 1981

Argued April 29, 1981.

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Roy M. Cohn, New York City (Saxe, Bacon & Bolan, P. C., Michael Rosen, Lawrence M. Abramson, New York City, of counsel), for defendant-appellant Earl Wilson, Jr.

Max R. Millman, Philadelphia, Pa. (David N. Stein, New York City, on the brief), for defendant-appellant Art D'Lugoff.

Robert C. Osterberg, Abeles Clark & Osterberg, New York City, for plaintiff-appellee MCA, Inc.



From January 1974 until July 1976, a show called "Let My People Come" was performed at the Village Gate, a cabaret in the Greenwich Village section of New York City. Thereafter, it had short runs in several other cabarets and legitimate theaters. The producers, perhaps wisely, refrained from seeking reviews by established theater critics. However, columnists who viewed the production described it, among other things, as an "erotic nude show" with "sex content raunchy enough to satisfy the most jaded porno palate", a show whose "main concern is not fornication but fellatio and cunnilingus."

The music in the show was said by one columnist to sound "like something we've heard before but definitely not with these

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words." One of the songs,, described by reporters as a "take-off" on the Andrew Sisters' and Bette Midler's renditions of a copyrighted song called "Boogie Woogie Bugle Boy" is the subject of this litigation. Following a non-jury trial before Judge Cooper in the United States District Court for the Southern District of New York, MCA, Inc., the copyright owner, was awarded a total of $324,955.00 against various participants in the theatrical venture for infringement of the copyright on this song. Judge Cooper's opinion is reported in 425 F.Supp. at 443, and familiarity with it is assumed.

Boogie Woogie Bugle Boy is the alliterative description of a soldier in "Company B" who hailed from Chicago. During early rehearsals for Let My People Come, defendant Wilson played for the cast a rough version of a song he had composed which alliteratively described the "Cunnilingus Champion of Company C" who came from Memphis or maybe St. Joe. As Judge Cooper found, cast members immediately commented concerning the similarities between the two songs. 425 F.Supp. at 448. Because it was felt that the similarities would create publicity, they were not eliminated; indeed, to some extent, they appear to have been fostered. Id. Our review of the testimony, lay and expert, and the visual and aural impressions we have gained from the songs themselves satisfy us that the district court's factual finding of substantial similarity was not clearly erroneous. See Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966); Fed.R.Civ.P. 52(a). Unless, therefore, defendants' incorporation of the song into their show constituted fair use under the copyright law, plaintiff has established its claim of copyright infringement.

In asserting the defense of fair use, defendants contend that they were using plaintiff's copyrighted song in a reasonable manner and that therefore they were not required to secure plaintiff's consent. See Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205-06 (2d Cir. 1979); Time, Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 144 (S.D.N.Y.1968). When weighing the merits of a defense such as this, a court does not have the benefit of either a statutory or judicial definition of what is reasonable and fair. It has instead certain suggested criteria to which it may look in making this determination.

Section 101 of the 1976 Copyright Act Revisions, 17 U.S.C. § 107, which, although not controlling herein, is intended to be a codification of preexisting law, see Meeropol v. Nizer, 560 F.2d 1061, 1068-69 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978), provides in part that the "fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research, is not an infringement of copyright." The statute then sets forth four factors to be considered in determining whether a particular use is fair.

The court should, for example, look at the nature of the copyrighted work. In so doing, the court may consider, among other things, whether the work was creative, imaginative, and original, New York Times Co. v. Roxbury Data Interface, Inc., 434 F.Supp. 217, 221 (D.N.J.1977), and whether it represented a substantial investment of time and labor made in anticipation of a financial return, Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 96 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978).

The court should also look at the purpose and character of the alleged infringing use, including its commercial or non-profit educational motivation or design. While commercial motivation and fair use can exist side by side, the court may consider whether the alleged infringing use was primarily for public benefit or for private commercial gain. Meeropol v. Nizer, supra, 560 F.2d at 1069; Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Marvin Worth Productions v. Superior Films Corp., 319 F.Supp. 1269, 1275 (S.D.N.Y.1970).

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The court may also consider whether the paraphrasing and copying was done in good faith or with evasive motive. Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc. v. Columbia Broadcasting System, Inc., 503 F.Supp. 1137, 1146-47 (S.D.N.Y.1980); Nutt v. National Institute Incorporated for the Improvement of Memory, 31 F.2d 236, 237 (2d Cir. 1929).

The third factor concerns the extent of the copying. Use of copyrighted material without the owner's consent generally will not be considered reasonable if it extensively copies or paraphrases the original or bodily appropriates the research upon which the original was based. Rosemont Enterprises, Inc. v. Random House, Inc., supra, 366 F.2d at 310; Walt Disney Productions v. Mature Pictures Corp., 389 F.Supp. 1397, 1398 (S.D.N.Y.1975); see Walt Disney Productions v. Air Pirates, 581 F.2d 751, 756 (9th Cir. 1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979); Universal City Studios, Inc. v. Sony Corp. of America, 480 F.Supp. 429, 454 (C.D.Cal.1979).

The final suggested factor concerns the effect of the alleged infringing use upon the potential market for or value of the copyrighted work. The aim of the copyright laws is to stimulate artistic creativity for the benefit of the public, and this is done by providing the artist with the financial motivation for creativity that flows from a limited form of monopoly. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975); Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 393-95, 88 S.Ct. 2084, 2085-2086, 20 L.Ed.2d 1176 (1968). However, where a claim of fair use is made, a balance must sometimes be struck between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1352 (Ct.Cl.1973), aff'd per curiam by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975); Berlin v. E. C. Publications, Inc., 329 F.2d 541, 543-44 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). The less adverse effect that an alleged infringing use has on the copyright owner's expectation of gain, the less public benefit need be shown to justify the use. See Meeropol v. Nizer, supra, 560 F.2d at 1070; Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 747 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980) (per curiam); Time, Inc. v. Bernard Geis Associates, supra, 293 F.Supp. at 146.

Using the above factors as guideposts, we may now review the evidence to determine whether the district court's rejection of the fair use defense was clearly erroneous. Since the issue of fair use is one of fact, Meeropol v. Nizer, supra, 560 F.2d at 1068; Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598, 604 (7th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957), the clearly erroneous standard of review is appropriate.

Among the exhibits introduced below were two phonograph records. One, published by MCA Records, was an Andrews Sisters' recording which included Boogie Woogie Bugle Boy. The other, published by the defendant Libra, was a recording of Let My People Come which included Cunnilingus Champion. The parties stipulated that the sale of these records was a traditional means of exploiting musical works. Other stipulated means were the use of the songs in stage performances and the sale of printed copies. Both of the songs at issue herein were exploited in all three media. In determining, therefore, whether defendants' use of plaintiff's song was unfair, we start from the premise that the songs were competing works.

When this action was commenced in July 1974, defendants did not contend that they were making fair use of plaintiff's song. Instead, they simply denied plaintiff's allegation that Cunnilingus Champion was substantially copied from plaintiff's...

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