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Seventh Circuit Affirms Dismissal Of Banana Lady's Copyright Infringement Suit

Wednesday, April 16, 2014

By Tamlin H. Bason  

April 15 --A singing telegram performer's copyright infringement claim, which was asserted against a number of credit unions who had hired her to sing at a trade association event and was based on the defendants' alleged inadequate instructions to audience members about their limited right to film the plaintiff's performance, “has no merit,” the U.S. Court of Appeals for the Seventh Circuit ruled April 14.

The short, somewhat incredulous opinion was written by Judge Richard A. Posner and concluded with a scathing recitation of the pro se plaintiff's proclivity for costly and baseless litigation. Before offering that criticism, however, the court first expressed its bemusement both at the fact that banana costumes are “a common consumer product” and that the plaintiff “believes,  somewhat implausibly” that an instruction to the audience that they had a limited right to photograph her performance would “exclude[] posting any of the photos on the photo taker's Facebook page.” But in any event, although the plaintiff, Catherine Conrad, owned--or claimed to own--copyrights in pictures and sculptures of her in her banana costume, she failed to allege any actionable violation of those copyright interests. The appeals courts thus affirmed the district court's dismissal of the claims.

Performance Not Fixed, Copyrighted or Copyrightable

Among the myriad deficiencies with Conrad's infringement claim was that, “The performance itself was not copyrighted or even copyrightable, not being 'fixed in any tangible medium of expression,' ” the court said, quoting Section 102(a) of the Copyright Act, 17 U.S.C. §102(a).

The fact that the performance had never been registered should have been the end of the court's analysis since a plaintiff cannot file a copyright infringement lawsuit before first registering the copyright per Section 411(a), 17 U.S.C. § 411(a). The court nevertheless proceeded with its analysis, noting that “[p]hotos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative” of the protectable elements of Conrad's performance. Accordingly, the court noted that Conrad could potentially allege either that the audience members violated a provision of the Copyright Act that prohibits the unauthorized recording of a musical performance--17 U.S.C. § 1101(a)--or that they violated her public display rights under Section 106(5), 17 U.S.C. § 106(5).

However, Conrad had not alleged that either of those rights had been violated and she had also sued the organizers of the event, not the individual audience members. The organizers, the court said, could only be liable for inducing infringement, and only then if they encouraged the audience members to infringe Conrad's copyrights. But, the court noted that Conrad did not--and probably could not--allege that the organizers induced infringement. Indeed, the organizers had informed the audience that they could not use photos and videos that they took of Conrad's performance for anything other than personal use. The court thus determined that the claims were baseless.

Seventh Circuit to District Court: Stop Plaintiff's Abuses

The appeals court noted that Conrad has been sanctioned in the past by both state courts and federal courts for “her abuse of the legal process by incessant filing of frivolous lawsuits.” Indeed, she was ordered to pay $55,000 in costs and fees, pursuant to 17  U.S.C. § 505, in one previous copyright infringement case. But although she has not fulfilled her obligations under these judgment awards, the U.S. District Court for the Western District of Wisconsin has continued to allow her to file suits in forma pauperis--whereby she is not required to pay all of the various court costs associated with filing a civil complaint.

“It should consider enjoining her from filing further suits until she pays her litigation debts,” the Seventh Circuit said.

Judges Michael S. Kanne and John Daniel Tinder joined the opinion.

The defendants were represented by Patryk W. Silver of Borgelt, Powell, Peterson & Frauen, Madison, Wis.

 


Text is available at http://www.bloomberglaw.com/public/document/Catherine_Conrad_v_AM_Community_Credit_Union_et_al_Docket_No_1302

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com

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