Rebecca Tushnet

Estate of Barré v. Carter, No. 17-1057, 2017 WL 3188489
(E.D. La. Jul. 25, 2017)

Plaintiffs alleged that they owned in the copyright in two
YouTube videos created by Anthony Barré, a performance comedian and music
artist from New Orleans whose voice “was a unique instrument and inextricably
linked to his performance art.” 
Defendants released the song “Formation,” which used three phrases from
Anthony Barré’s works, “What happened at the New Orleans,” “Bitch I’m back, by
popular demand,” and “Oh yeah baby. I like that.”  Barré’s voice, performance, and words were
also allegedly “used and exploited” during the “Formation World Tour,” for example,
“Oh yeah baby, I like that” was used during the introductory performance of
“Formation,” and defendants allegedly utilized other performers to imitate
Anthony Barré’s voice and cadence in saying, “Bitch I’m Back by Popular Demand”
before defendant Carter appeared onstage. 
Plaintiffs sued for copyright infringement, false endorsements under the
Lanham Act, violations of the Louisiana Unfair Trade Practices Act (“LUTPA”),
and unjust enrichment under Louisiana law. 
Here, the district court understandably refuses to dismiss the copyright
claim on the pleadings, and inexplicably refuses to dismiss the other claims as
preempted/precluded by Dastar/barred
by the First Amendment.

Defendants argued that their purpose was transformative,
using the short clips to “create the tone, mood, setting and location of the
New Orleans-themed ‘Formation.’ ” 
Defendants disagreed that this could be transformative, and that the
original work wasn’t altered as in previous “appropriation” art cases where
fair use is found ((a) hunh? (b) taking little bits and mixing them with others
is alteration in my book, (c) I wouldn’t call this an appropriation art
case unless you want to merge that subset with transformative use cases in general).  Other bobbles aside, the court
concludes that enough has been pled to go forward on the question of
transformativeness and of fair use.  And
it correctly rejects plaintiffs’ bizarre idea that fair use doesn’t apply in
sound recording cases because of Bridgeport
Films.

False endorsement: Plaintiffs pointed to Facenda v. NFL
Films, arguing that the court allowed a false endorsement case over use of a
voice “ when the promotional video and video game at issue were used for
commercial purposes.”  [Here we see part
of the problem of the chaos of false endorsement/publicity claims: the
plaintiff, however misleadingly, gets to ignore the distinction between
advertising and non-advertising uses.] 
The court found that such a claim could be viable. [But that’s not the
relevant question.  False endorsement is
a potentially viable claim; the question is, however, whether copying an
author’s work, especially outside an ad and as part of another creative work,
can itself constitute the relevant act supporting a false endorsement claim.  Dastar and
other cases indicate that it can’t.  It’s
also worth noting that the Copyright Act deliberately allows imitation of sound
recordings, which isn’t within the scope of the sound recording reproduction
right, so allowing a claim based on soundalikes not used in advertising (as
alleged here) also creates a direct conflict with the Copyright Act.]  The court held that it was enough to allege
that Barré’s voice and words were distinctive and recognized by consumers and
the media, which “caused consumer confusion regarding involvement or approval
of his estate” in “Formation,” the “Lemonade” album, and the “Formation World
Tour.”

The court distinguished Oliveira v. Frito-Lay because
plaintiffs alleged (1) that defendants imitated Barré’s voice, and (2) that
defendants used Barré’s voice in a way that created consumer confusion about
endorsement.  (2) of course merely
restates the theory rejected in Oliveira and doesn’t distinguish the case at
all; (1) doesn’t really address why a performance can be a trademark for
itself, which is the basic problem of such claims—again, especially as applied
to non-ad uses (which just multiplies the copyright conflicts).

Defendants correctly noted that, under Rogers, only an explicitly misleading non-advertising use escaped
First Amendment protection, and that explicit means explicit.  The court disagreed with the latter part of
this argument.  “For example, Plaintiffs
allege in the amended complaint that the ‘conduct of Defendants has been
willful from the inception of the creation of “Formation” and “Lemonade.”’ ” [That’s
not what “explicit” means.  It is not a
synonym for “intentional.”  Otherwise Rogers would have come out very
differently.  “Explicit” means falsely
claiming authorization, not remaining silent, which at most could be an
implicit claim.]  The allegations that
defendants “intentionally and unlawfully copied the unique and original voice
and words of Anthony Barré” to use as the “defining introduction of the song
‘Formation,’ ” “used and exploited” Anthony Barré’s voice and words during the
live performances by having another person imitate his voice and cadence, and “failed
to give credit or compensation in an ‘unethical, misleading, false, unfair and
deceptive’ manner” somehow substituted for explicitness.

Given this ruling, it’s not surprising that the Louisiana
Unfair Trade Practices Claim also survived, though of course it also has
copyright preemption/First Amendment problems that match up with the Dastar/Rogers problems of the federal claims.  Plaintiffs alleged misappropriation that went
beyond copyright because defendants acted “unethically, wrongfully and
fraudulently.”  [The “going beyond” alleged
consists entirely of the copying and its inherent effects.  “Profit” isn’t an extra element, nor are all
those adverbs, and the alleged misrepresentation is again based solely on the
copying as misrepresentation.] 

An unjust enrichment claim was dismissed as duplicative.