Thomas Nelson, Inc. v. Zondervan Corporation et al No. 3:2009cv01097 (Filed Nov. 13, 2009, M.D.Tenn.)

It is a chronic problem in copyright cases that the author/creator gets wedged in a dispute with an early buyer of their work because that buyer claims her later work infringes what the first buyer thinks they bought. The facts reduce to a short equation: author/artist assigns copyrighted content to a publisher; and later sells separate, differently expressed copyrighted content to a second, later buyer. The first publisher claims that that later work “infringes.” The lead case on point is Fogarty v. Fantasy Records, 510 U.S. 517 (1994).

The most recently filed case on the topic was filed by Christian publisher Thomas Nelson Inc. against another Christian publisher Zondervan Corp and illustrator Meredith Johnson. Plaintiff hired Johnson under a work-for-hire agreement to provide drawings for the children books series “Gigi, God’s Little Princess.” Plaintiff claims that Johnson breached her contract with him by providing allegedly similar illustrations for a book series entitled “The Princess Twins” published by competitor Zondervan. Plaintiff also claims copyright infringement and unfair competition.

The fly in the ointment is that the illustrator, in the document that effected the copyright assignment of the first work, also agreed to not publish artwork that “in any manner would compete or conflict with” the rights granted to Plaintiff Thomas Nelson.

Ouch! That would be a sentence that might have been captioned “You will need a wholly different style for future works”.

We’ve posted here about the ongoing legal battles in the courts between copyright owners and the popular Sweden-based file sharing site The Pirate Bay.

The appeal in Sweden is currently on hold, pending resolution of the defendants’ allegations of bias against two of the three appellate judges (based on their membership in “pro-copyright” organizations). The Swedish Supreme Court recently agreed to hear the bias allegations. At this time, the appeal appears to be suspended indefinitely, pending the Swedish Supreme Court decision. Stay tuned…

In related news, over the summer, three founders of The Pirate Bay were sued in The Netherlands by the Dutch anti-piracy trade association BREIN (fun fact: the papers were served through Facebook and Twitter because the defendants could allegedly not be physically located). The case resulted last month in an adverse ruling ordering the web site to remove all links to copyrighted content and block Dutch users. The compliance deadline is March 1, 2010. The Pirate Bay will reportedly not appeal the decision.

The Estate of Bertha V. James has filed suit in California against Lionsgate Entertainment and Tyler Perry, claiming he incorporated a full verse from the song “The Golden Hour,” (a derivative work of James’ 1950 song “When I Think of the Goodness of Jesus”) into Perry’s 2008 movie release, Madea Goes To Jail. Not your traditional stole the song kind of claim, James’ Estate alleges that a chorus of the song was turned into a monologue that was delivered by the main character “Madea,” after she is given leniency for her repeated criminal behavior.

Practice Note: Many clients believe the urban myth that if you take only some portion of a song, or repurpose it in a different way (like turning it into a monologue), you are not committing copyright infringement and have no duty to the song’s writer.