The Burbank High School Show Choirs were found not liable for copyright infringement.
Almost three and a half years ago, we reported on a copyright suit brought by Arizona-based music licensing company, Tresóna Multimedia, LLC (“Tresóna”) against the Burbank High School Vocal Music Association (the “Association”). The Association oversees the five show choirs at Burbank High School (the “Show Choirs”). The Show Choirs are nationally recognized as top competitors in their respective divisions and reportedly inspired the television series “Glee.”
In its lawsuit filed in June 2016, Tresóna alleged copyright infringement on the grounds that the Association did not obtain proper licensing for musical arrangements performed by the Show Choirs. Tresóna brought claims related to four songs. The district court granted defendants’ motions for summary judgment and Tresóna appealed to the Ninth Circuit Court of Appeals.
In its March 24, 2020 opinion, the Appeals Court affirmed the District Court’s grant of summary judgment. Like the District Court, the Appeals Court found that Tresóna lacked standing to sue in regard to three of the four songs at issue in the case. The Appeals Court cited legal precedent explaining “only the legal or beneficial owner of an exclusive right under a copyright is entitled to institute an action for any infringement of that particular right.” Tresóna received its interests in the three songs from an individual co-owner of the interests in the songs without the consent of the other co-owners. The Appeals Court found that Tresóna was thus not an exclusive owner of the interests in the three works and lacked standing to sue for infringement based on the claims to those three works. The Appeals Court held Tresóna still had standing as it pertained to the fourth work.
For the fourth song, the Appeals Court found the Association’s and the Show Choirs’ use to be fair use. Evaluating the four fair use factors, the Appeals court found the purpose and character of the use to be for “nonprofit educational purposes” and was transformative because it added “new expression, meaning, and message,” thus weighing heavily in favor of fair use. For the next factor, the Appeals Court found the nature of the copyrighted work to be creative, weighing against fair use. For the third factor, the Appeals Court determined that because the portion of the copyrighted work used was the chorus of the copyrighted song but was included in a sufficiently transformative work, this factor did not weigh against fair use. For the final factor, the Appeals Court found that the use of the copyrighted work by the Association and the Show Choirs is not a substitute for the original copyrighted work, thus weighing in favor of fair use.
Concerning attorney’s fees, the Appeals Court found the District Court abused its discretion in denying attorney’s fees to the defendants and reversed in an effort to “deter the type of litigation conduct in which Tresóna engaged.” The case has been remanded for a calculation of the award to the defendants.