Skip to main content
SearchLoginLogin or Signup

Who’s Not Ready?: Lionsgate Entertainment Sued for Copyright Infringement for Music in the LeBron James Documentary

Published onNov 08, 2011
Who’s Not Ready?: Lionsgate Entertainment Sued for Copyright Infringement for Music in the LeBron James Documentary

Kings in Court Series: Part II

 

Commonly referred to as King James for his superior skills on the basketball court, LeBron James is the perfect subject of the second edition in the Kings in Court Series. The Kings in Court series was created to highlight individuals, who are deemed to be royalty in their own right, that have found themselves in court for some sort of intellectual property violation.

On or around September 6, 2011, songwriter-producer Mason “Big Mace” Hall filed suit in a Georgia federal court against Lionsgate Entertainment (the distributor of the documentary) and Interscope Records (LeBron James’ label) for copyright infringement for the inclusion of unauthorized music in Liongate’s documentary, More Than A Game. Mr. Hall alleges that the song at the center of the controversy entitled, “We Ready,” was used at several points during the documentary without his permission.  During the documentary, which highlights the high school basketball careers of LeBron James and his high school teammates, the young players can be heard performing a pre-game motivational chant also entitled, “We Ready.” Interviews conducted during the documentary with several players explained that this song-chant, which was performed ritually during the warm-up of each game, became the “rallying cry” of the team.

According to the complaint, Mr. Hall seeks the following relief: (1) an injunction against any further use of the song, which effectively includes stopping Lionsgate from any continued distribution of the documentary; (2) punitive damages in excess of $1 million dollars or the maximum statutory damages awarded under copyright law; and (3) profits arising from the documentary.

However, before this copyright infringement suit can pick up any legal traction, Mr. Hall must first establish that the song-chant in the documentary is his original song. In order to establish a viable copyright claim, a copyright holder must show that: “(1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s [work].”  Hamil Am., Inc, v. GFI, 193 F.3d 92, 99 (2d Cir. 1999).  According to the Hollywood Reporter, Rapper Yaboy turned the “We Ready” chant into a rap song that was used on the documentary’s soundtrack. Notwithstanding this, Mr. Hall alleges that he authored the song “We Ready,” which was originally recorded by music recording artist, Archie Eversole, Jr.  After listening to all versions of the song, it is reasonably apparent that all later versions of the song were derived from his original song.

Even after establishing ownership and authorship of the song, Mr. Hall must next overcome the doctrines of fair use and de minimis use as well as the notion that current copyright law may not extend its protection to include the words, “We Ready.”  A brief explanation of the law may prove useful in contextualizing the potential contours of Mr. Hall’s lawsuit.

The fair use doctrine allows non-copyright holders “to copy, publish, or distribute parts – sometimes even all – of a copyrighted work without permission, for purposes such as commentary, news reporting, education, or scholarship.” The court takes the following four factors into consideration when determining whether an infringer’s use of a work falls within the purview of the fair use doctrine: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”  The application of the fair use defense is unpredictable as no one factor is dispositive.  Accordingly, the courts must perform a balancing test in light of the totality of circumstances.

Perhaps two of the leading factors in the case at hand will be the character of use prong and the substantiality prong.  Under the character of use prong, the court looks at how the infringer used the original work.  That is, the court looks at whether the infringer’s use constitutes a creative or transformative use of the work. A work is deemed transformative when the “new work” adds something new in terms of meaning, expression, or message to the original work.  The way that the court ultimately comes out on this prong could depend in no small part on whether the court considers the chant commercial in nature.

In considering the substantiality prong, the court looks “not only to how much of the copyrighted work is used, but also to how central that portion is to the original work.” As a general rule, the less of the work that is used, the better an infringer’s chance of being able to successfully satisfy the substantiality prong of the defense.  In tandem, the court may also consider whether the use of the term, “We Ready,” is too common of an adage to have any copyright protection extended to it.  If the court should find that the term falls within the scope of copyright law, the court then considers whether the actual use of the term was so minor in comparison to the work-at-large that the copyright infringement claim necessarily fails.  Given that More Than A Game is a 105-minute documentary that follows the high school basketball careers of five then-high school teammates, it seems unlikely that a court will find that the pre-game chant satisfies the substantiality prong.  However unlikely this may seem, it is not impossible for a court to find otherwise. Considering that the chant was a pre-game ritual used and shown in different portions during the documentary, a court could reason that the chant’s use was substantial in the context of the entire work.

No matter which way the court decides to come down in this lawsuit, one thing is for certain.  I would much rather follow LeBron James on a basketball court than in a court of law defending a lawsuit.

Other Parts:

Kings in Court Series: Part I

* Tierryicah D. Mitchell is a third-year law student at Wake Forest University School of Law.  She holds a Bachelor of Arts and Science in Political Science and History from the University of North Carolina at Chapel Hill.  Upon graduation in 2012, Ms. Mitchell plans to work for the federal government.

Comments
0
comment
No comments here
Why not start the discussion?