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When a day-jobber gets up and belts out a rendition of "New York, New York," at the local karaoke club, does anyone actually think they are hearing Frank Sinatra?
Even when Sinatra was alive, it would be hard to confuse an imitation with the King of the Hill. I mean, we're talking about the original "Voice," the "Chairman of the Board," "Ol' Blues Eyes" himself.
It's just as hard to imagine that anyone would sue over a karaoke performance as somehow confusing listeners about the origin of the music. But that's what happened, in a digital media-shifting sense, in a case recently decided by the Ninth Circuit.
Spreading the Blues
The Plaintiff Slep-Tone Entertainment Corporation produced karaoke tracks on CD, or "CD-G" as it is known in the business, which accompanies karaoke music with graphics, lyrics, and singing cues. The Defendant Wired for Sound Karaoke and DJ Services, LLC, operated a karaoke business in the Phoenix area using Plaintiff's CD-G tracks.
Plaintiff sued the defendant when it discovered the defendant had media-shifted, or "ripped," the CD-G tracks to computer hard drives. Plaintiff alleged the unauthorized use violated the Lanham Act's provisions against trademark infringement and unfair competition, claiming that consumers would be confused about the origin of the recordings.
The trial court dismissed the complaint, saying that plaintiff was trying to "stuff copyright claims into a trademark container." The appeals court agreed, explaining that the common question in trademark and unfair competition is whether there is a 'likelihood of confusion" about the protected good.
Make it Anywhere
The court said the different delivery systems would not confuse anyone about the source of the karaoke music. The complaint did not present a Lanham Act claim because consumers wouldn't know the difference between the hard drive recording and the CD-G recording.
"Karaoke patrons who see Defendants' performances of Plaintiff's karaoke tracks will not be confused about 'the source of the tangible good sold in the marketplace,'" the appeals court said.
Citing the Supreme Court's analysis of the Lanham Act in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003), the 9th Circuit panel said the statutory reference to the "origin of goods" must "refer to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods."
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