The Seventh Circuit finds that a song was a joint work, as a matter of law, where a songwriter’s fellow band member recommended changes which accounted for ten percent of the copyrighted song’s lyrical content and was listed as a co-author on the copyright registrationThe Seventh Circuit reversed the district court’s grant of partial summary judgment on the issue of liability for copyright infringement in favor of plaintiff Cheryl Janky, who claimed she was the sole author of the song “Lake County, Indiana.” The court held that partial summary judgment should instead be granted in favor of defendant Lake County Convention and Visitors Bureau, because Janky’s fellow band member, Henry Farag, had co-authored the song with Janky and granted the Bureau a non-exclusive license to use the song.
Janky and Farag were members of Stormy Weather, an Indiana-based doo-wop group. The song at the center of the litigation was commissioned by the Bureau to promote Lake County in advertisements and at a visitor’s center. Janky completed the words and music to the song and obtained a copyright as the sole author in May, 1999. Later, Janky showed the song to Farag, who suggested revising the lyrics to better suit the Bureau’s vision by focusing specifically on Lake County. Farag’s recommendations, which Janky adopted, accounted for about ten percent of the song’s lyrical content. In December, 1999, Janky filed a new copyright registration form for the revised song, listing Farag as a co-author and calling the song a “joint work.” Stormy Weather recorded the revised version of the song and created a companion music video, both of which Farag licensed to the Bureau. The Bureau used the song in promotional ads from December, 1999, through 2003. In 2003, Janky filed another copyright registration form, listing herself as the sole author of the song. She notified the Bureau that she was the exclusive owner of the copyright and, in October, 2003, filed a lawsuit alleging copyright infringement.
Janky alleged that the Bureau’s license was dependent on Farag’s status as a co-author and, as Farag was not a co-author, the Bureau’s use of the song constituted infringement. In the district court, Janky moved for summary judgment on the issue of whether the song was a joint work. The district court applied the test for co-authorship from the Seventh Circuit’s decision in Erickson v. Trinity Theatre, Inc, 13 F.3d 1061 (7th Cir. 1994), which requires (1) intent to create a joint work and (2) contribution of independently copyrightable material. The district court granted partial summary judgment in Janky’s favor, finding that no jury could find that Farag and Janky intended to be co-authors at the time of creation and that Farag’s contributions were nothing more than “minimal revisions” to Janky’s song.
The Bureau appealed the district court’s grant of partial summary judgment on liability. Again, Erickson provided the framework for analyzing whether “Lake County, Indiana” was a joint work. Considering the first element of intent to create a joint work, the court focused on the evidence of intent supplied by Janky’s “crediting” Farag as a co-author by naming him as such on a 1999 copyright registration form for the song. The court also noted that “Farag wielded considerable control over what the song finally looked like; one could even say he demanded the changes.” In its analysis of the first element, the court found Janky’s current denial of her intent to create a joint work “irrelevant”, stating “[t]he issue is whether Janky and Farag ‘intended to be joint authors at the time the work was created.’” As to the second element of a joint work, the court held that copyrightability is always a question of law. The court found that Farag had contributed “independently copyrightable material” by suggesting changes that, although they “accounted for only 10 percent of the lyrics,” were important to the song’s final sound and its commercial viability. The court added that, “though we think any reasonable jury would agree with us on this point,” under Seventh Circuit precedent, “copyrightability is always an issue of law.” The court reversed the district court, remanding for entry of partial summary judgment in favor of the Bureau and such further proceedings that may be necessary.
Turning to Janky’s cross-appeal, the court held that Janky’s counsel’s request to setoff a $2,500 sanction award he incurred against the judgment obtained by Janky was mooted by the court’s conclusion that the Bureau – not Janky – was entitled to summary judgment.
Judge Ripple dissented, reasoning that, although the evidence before the district court was insufficient to grant summary judgment in favor of Janky, the evidence of Farag’s intent and his contribution of “independently copyrightable material” was insufficient to grant summary judgment to the Bureau.