Tuesday 27 January 2015

Zimmer in the frame over movie claim, Smith moves on with Stay With Me

Now there's that old saying isn't there - "where there's a hit - there's a writ" and whilst this blogger often spies claims of plagiarism, sampling and sometimes even downright copying which usually result in at least the threat of a lawsuit in the film, TV and music sectors, a claim in relation to the Oscar winning movie 12 Years a Slave has also thrown up claims violations of moral rights (under the copyright laws of Germany and France) - but in a US court. And elsewhere, a pop tune claim seems to have come to a sensible conclusion with at least the acknowledgement that an earlier Tom Petty work may have influenced the hit Stay With Me from the ever so soulful Sam Smith. 

The Hollywood Reporter lets us know that a U.S. civil lawsuit has been filed on behalf of composer Richard Friedman against composer Hans Zimmer, along with 20th Century Fox, Sony Music and various companies connected to the movie, for the alleged inclusion of a copyrighted music composition into the film's main musical theme.

According to the complaint, filed in a Californian federal court, the "Solomon Northup" theme in the movie can be traced to a 2004 Friedman composition titled "To Our Fallen," which allegedly was widely distributed as part of a music sample entitled "American Heart." The plaintiff says that the sound recording was embodied in a 2008 episode of the ABC series Desperate Housewives and that the string overdub portions of the music were recorded at the same recording facility used by Zimmer to create most of the musical score for 12 Years a SlaveFriedman is demanding monetary damages and an injunction.

The lawsuit's "quirkiest bit" is the assertion of the violation of Friedman's moral rights in the fourth and fifth claims for relief. The film, of course, had international distribution. The claim under (VII) relates to German law ('The German Copyright Statute of 1965') and refers to (in a translated form) the "right of recognition of authorship" and the author's right to prohibit "any distortion or mutilation of the work" before going on to apply the restricted acts in German law - here of reproduction, distribution and broadcast. The fifth claim under French law (VIII) is brought under 'The Republic of France the Code of Intellectual Property 1992' which seemingly provides that (in a translated form) L121.1  "an author shall enjoy the right to respect for his name, his authorship and his work" before going on the outline L121.2 (the author's right to divulge his work) and  L122.1 (the author's right of exploitation ... the right of performance and the right of reproduction) and the lawsuit asks for relief under the relevant French and German law.  This makes for uncomfortable reading when compared with the claim's choice of court for a jury trial in (II) Jurisdiction and Venue: the court selected is the District Court of the Central District of California Western Division and the claim is oddly silent on why French and German law claims are included, whilst also asserting that the District Court has "original and exclusive jurisdiction over the subject matter of this civil action under the Copyright Act 17 USC ss411 and 511", that the court has supplemental jurisdiction over a claim of unfair competition and that venue is the proper location as the defendants transact business within the District and can be found there and that many of the infringing acts were performed and occurred within the District. 

Rather handily TMZ has a comparison of the two works: One rather amusing comment goes "Oh puh-leeze! Mr. Zimmer also has two legs and is right-handed. Coincidence? At least in this excerpt, Mr. Friedman's piece is a very generic idea. They probably both ripped off me! And Beethoven. And Mozart. And. And. And....".

But in another songbook altogether  ....... When Sam Smith’s “Stay With Me” was released in April 2014, a number of commentators were quick to note the distinct resemblance to Tom Petty and the Heartbreakers’ 1989 classic tune “I Won’t Back Down”. Now details have emerged of a settlement on the split of song writing credits and a new split in the song's royalties. And remember it’s similarities in the song that this matter is about – NOT the sound recordings themselves – which this blogger feels are quite different. However, there is certainly an arguable similarity in some of the chord sequences so I am guessing that, and perhaps the presumption of 'casual connection' is why the claim was settled. The settlement reportedly included a 12.5% writing credit to both Petty and composer Jeff Lynne (of ELO fame) and the song’s credits on ASCAP (the collection society the American Society of Composers, Authors, and Publishers ) now lists Smith, Petty, Lynne, William Phillips and Jimmy Napes as the chief songwriters in what appears to be an amicable and sensible deal.  Again there's a handy 'compare for yourself' audio facility here. So you can make your own mind up! And more from Adam Ragusea in The Real Reason People Keep Plagiarizing Tom Petty here - another interesting opinion!

http://www.hollywoodreporter.com/thr-esq/12-years-a-slave-draws-767183 and http://www.thesun.co.uk/sol/homepage/showbiz/bizonsunday/6294030/Sam-Smith-settles-up-royalty-dispute-with-Tom-Petty-and-Jeff-Lynne.html and for more on the UK's position on 'casual connection see Francis Day & Hunter v. Bron, [1963] Ch. 587

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