UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20736
LEONARD BROWN; ET AL
Plaintiffs,
LEONARD BROWN; WALTER PRICE; PETE MAYES; JAMES NELSON; CLARENCE
PARKER; LEE J. FRAZIER, also known as Skipper Lee Frazier; JOE
HUGHES, also known as Joe “Guitar” Hughes; RAYFIELD JACKSON, also
known as Houston Guitar Slim; FREDDIE COLLINS, also known as Big
Roger Collins; ALFRED R. BETTIS; FALIETA GREEN; THOMAS DARDAR,
formerly known as Tommy Dardar, presently known as; DEBRA L.
NICKERSON; WELDON BONNER, presently known as Juke Boy Bonner;
LIZETTE COBB; ARNETT COBB; KINNEY ABAIR
Plaintiffs-Appellees,
v.
ROY C. AMES, Etc.; ET AL.
Defendants
ROY C. AMES, doing business as Clarity Music & Home Cooking
Records
Defendant-Appellant
COLLECTIBLES INC., doing business as Collectibles Records
Movant-Appellant.
Appeals from the United States District Court for the
Southern District of Texas
February 7, 2000
Before JONES and DENNIS, Circuit Judges, and PRADO*, District Judge.
*
District Judge for the Western District of Texas, sitting by
designation.
EDITH H. JONES, Circuit Judge:
Appellants Collectibles and Ames principally appeal the
district court’s determination that appellees’ state law claims for
violation of their rights of publicity are not preempted by the
Copyright Act. The misappropriation consisted of appellants’
unauthorized use of appellees’ names and likenesses to market
appellees’ musical performances on CD’s and audio cassettes for
which appellants also lacked copyrights. Because a person’s name
and likeness in themselves are not copyrightable, and because the
state law tort for misappropriation does not conflict with federal
copyright law, appellees’ claims are not preempted. As the other
issues raised on appeal lack merit, the judgment is affirmed.
I. FACTUAL & PROCEDURAL HISTORY
Collectibles is a record label that distributes and sells
music recordings, especially repackaged vintage recordings. Ames
is a music producer specializing in Texas blues. Appellees are
individual blues musicians, songwriters, music producers or heirs
of such.
Around 1990, Ames, d/b/a Home Cooking Records, licensed
to Collectibles for commercial exploitation master recordings that
included performances by appellees. The written license agreements
also purported to give Collectibles the right to use the names,
photographs, likenesses and biographical material of all those whose
performances were on the master recordings. Ames represented and
2
warranted to Collectibles that Ames was entitled to convey these
rights. Using the master recordings, Collectibles manufactured and
distributed cassettes and CD’s, as well as music catalogs, with the
names and sometimes the likenesses of the performers on or in them.
In addition, Ames, but not Collectibles, sold posters or videotapes
with the names or likenesses of the plaintiffs.
In 1994, appellees sued Ames, Collectibles and Jerry and
Nina Greene, the owners of Collectibles. Before trial, the district
court dismissed appellees’ negligence and conversion claims as
preempted by the Copyright Act, and dismissed without prejudice the
copyright claims of those appellees who had not timely obtained
registration certificates. Appellees’ actions for copyright
infringement, violations of the Lanham Act and for misappropriation
of name or likeness under Texas state law proceeded to a jury trial.
At the close of appellees’ case, the Court granted judgment as
matter of law for defendants Jerry and Nina Greene, and the jury
found in favor of all defendants on the Lanham Act claims. These
rulings have not been appealed.
The jury also found that the defendants had
misappropriated the names and likenesses of the appellees and had
infringed (in the case of Collectibles, innocently) copyrights held
by some of the appellees. Finally, the jury found that Weldon
Bonner had not executed a Recording Agreement with Roy Ames. The
jury awarded the appellees misappropriation damages of $127,000--
$100,000 from Ames and $27,000 from Collectibles. In its final
3
judgment of August 3, 1998, the court held Collectibles liable for
$1,800 for copyright infringement and for $27,000 for
misappropriation and Ames liable for $22,500 for copyright
infringement and for $100,000 for misappropriation.
Collectibles and Ames have appealed on several grounds.
First, they assert that the Copyright Act preempts the
misappropriation claims. Second, they assert that the district
court should have enforced the allegedly notarized January 1975
Recording Agreement between Ames and Weldon Bonner, notwithstanding
the jury verdict that Bonner did not sign it, and that the district
court incorrectly instructed the jury on the burden of proof.
Third, they claim that the district court improperly awarded a
copyright to Leonard Brown for “Ain’t Got Much” because his wife
wrote the song and he lacked a written assignment from her.
Finally, Collectibles, but not Ames, asserts that the plaintiffs did
not present legally sufficient evidence to support the
misappropriation damages award.
II. DISCUSSION
A. Preemption
This Court reviews a district court’s conclusions of law
de novo. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 537
(5th Cir. 1998).
The Copyright Act provides that:
On or after January 1, 1978, all legal and equitable rights
that are equivalent to any of the exclusive rights within the
4
general scope of copyright as specified by section 106 in
works of authorship that are fixed in a tangible medium of
expression and come within the subject matter of copyright as
specified by sections 102 and 103, whether created before or
after that date and whether published or unpublished, are
governed exclusively by this title. . . .
17 U.S.C. §301(a). Section 301 requires the fulfillment of two
conditions. First, the content of the protected right must fall in
the subject matter of copyright. Second, the nature of the rights
granted under state law must be equivalent to any of the exclusive
rights in the general scope of a federal copyright. See Daboub v.
Gibbons, 42 F.3d 285, 289 (5th Cir. 1995); see also 1 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright §1.01[B] (1999).
In Texas, the tort of misappropriation provides protection
from the unauthorized appropriation of one’s name, image or
likeness. See Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir.
1987). It is best understood as a species of the right of publicity
or of privacy. See id. To prevail, a plaintiff must prove that (1)
the defendant misappropriated the plaintiff’s name or likeness for
the value associated with it and not in an incidental manner or for
a newsworthy purpose; (2) the plaintiff can be identified from the
publication; and (3) the defendant derived some advantage or
benefit. See Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir.
1994).
Appellants argue strenuously that appellees have not
presented an independent action for misappropriation. Because
appellees’ names and/or likenesses were used to identify their
5
musical works in Collectibles’ CD’s, tapes and catalogs, appellants
assert that the core of the misappropriation and copyright
infringement claims is the same, compelling preemption under section
301 of the misappropriation claims.
Appellants’ argument ignores, however, that the content
of the right protected by the misappropriation tort does not fall
into the subject matter of copyright, as section 301 requires. As
the district court correctly recognized, the tort for
misappropriation of name or likeness protects “the interest of the
individual in the exclusive use of his own identity, in so far as
it is represented by his name or likeness, and in so far as the use
may be of benefit to him or to others.” Restatement (Second) of
Torts §652C (1977). In other words, the tort of misappropriation
of name or likeness protects a person’s persona. A persona does not
fall within the subject matter of copyright – it does not consist
of “a ‘writing’ of an ‘author’ within the meaning of the Copyright
Clause of the Constitution.” Nimmer, supra, §1.01[B][1][c]; Jarvis
v. A&M Records, 827 F.Supp. 282, 297 (D.N.J. 1993); Bi-Rite
Enterprises, Inc. v. Button Master, 555 F.Supp. 1188, 1201 (S.D.N.Y.
1983); Apigram Publishing Co. v. Factors, Etc., Inc., 1980 WL 2047
(N.D.Ohio July 30, 1980)(available on WESTLAW); Lugosi v. Universal
Pictures, 25 Cal.3d 813, 849 (1979)(Bird, C.J., dissenting).
Furthermore, contrary to appellants’ implications, appellees’ names
and likenesses do not become copyrightable simply because they are
6
used to identify the source of a copyrighted work. Therefore, their
misappropriation claims do not fit the terms of §301 preemption.
Given the fact that a name or likeness is not
copyrightable, appellants’ reliance on Daboub is unavailing. In
Daboub, the plaintiffs alleged that ZZ Top had both infringed their
copyright in and misappropriated one of their songs, and this Court
held that section 301 of the Copyright Act preempted the state law
misappropriation claim. See Daboub, 42 F.3d at 287, 290. The
crucial difference between the two cases is that in Daboub the basis
of the misappropriation claim, as well as the copyright infringement
claim, was the song itself, bringing it within section 301's ambit,
whereas here the basis of the misappropriation claim was defendants’
use of plaintiffs’ names and/or likenesses.
The appellants also cite Fleet v. CBS, Inc., 58
Cal.Rptr.2d 645 (Cal. Ct. App. 1996), which, although more similar,
shares the same factual difference. In Fleet, plaintiffs were
actors in a copyrighted film who alleged that the exploitation of
the copyrighted work itself infringed their state right of
publicity. See id. at 647. They complained not only about the
showing of the film, but also about the use of pictures from the
film for advertising. See id. Because the individual performances
in the film were copyrightable, the court held their claims
preempted by federal copyright law. See id. at 650. Thus, Fleet,
like Daboub, involved a claim of misappropriation of something --
in Fleet, dramatic performances; in Daboub, songs -- within the
7
subject matter of copyright. This case, in contrast, involves a
claim of misappropriation of name and/or likeness, which is not
within the subject matter of copyright.
This Court finds the Ninth Circuit’s opinions in Midler
v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), and Waits v. Frito-
Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), more persuasive than the
case law urged by appellants. These cases, which the district court
relied upon, involved the misappropriation of the vocal styles of
Bette Midler and Tom Waits. The Ninth Circuit held that because
vocal style is not “fixed,” it is not copyrightable, consequently,
section 301 of the Copyright Act did not preempt a claim of
misappropriation of the singer’s vocal style. See Waits, 978 F.2d
at 1100; Midler, 849 F.2d at 462. In Daboub’s language, the content
of the protected right (in these cases, the singers’ vocal styles)
did not fall in the subject matter of copyright. Midler foreshadows
the result in this case, reasoning that “[a] voice is as distinctive
and personal as a face.” 849 F.2d at 463.2
One arguably analogous case has held to the contrary. In
Baltimore Orioles v. Major League Baseball Players Ass’n, 805 F.2d
663 (7th Cir. 1986), the Seventh Circuit held that the Copyright Act
preempted baseball players’ rights of publicity in their
2
The legislative history supports this conclusion, stating: “The
evolving common law rights of ‘privacy,’ ‘publicity,’ and trade secrets ... would
remain unaffected as long as the causes of action contain elements, such as an
invasion of personal rights or a breach of trust or confidentiality, that are
different in kind from copyright infringement.” H.R. Rep. 1476, 94th Cong., 2d
Sess. 132 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748.
8
performances. The court’s conclusion turned on its controversial
decision that performances in a baseball game were within the
subject matter of copyright because the videotape of the game fixed
the players’ performances in tangible form. See id. at 674-76.3
Baltimore Orioles, however, has been heavily criticized for holding
that a baseball game is a protectible work of authorship simply
because the performance was recorded on videotape that was itself
copyrightable. See, e.g., Nimmer, supra, §§1.01[B][1][c] and
2.09[F]; David E. Shipley, Three Strikes and They’re Out at the Old
Ball Game: Preemption of Performers’ Rights of Publicity under the
Copyright Act of 1976, 20 Ariz. St. L.J. 369, 384-88 (1988); Shelley
Ross Saxer, Baltimore Orioles, Inc. v. Major League Baseball Players
Association: The Right of Publicity in Game Performances and Federal
Copyright Preemption, 36 U.C.L.A. L. Rev. 861, 870 (1989). In any
event, Baltimore Orioles is distinguishable from this case because
the right of publicity claimed by the baseball players was
essentially a right to prevent rebroadcast of games whose broadcast
rights were already owned by the clubs. Viewed in this way, the
3
Baltimore Orioles appears to concede that some form of the right of
publicity is not preempted by the Copyright Act, e.g., where a company, without
the player’s consent, used his name to advertise its product or placed the
player’s photograph on a trading card. 805 F.2d at 676, n.24. The court
disagreed, however, with cases on which we have relied, and with their premise
that a public figure’s persona is not copyrightable because it cannot be fixed
in a tangible medium of expression. 805 F.2d at 678 n.26. The court states
that, “Because a performance is fixed in tangible form when it is recorded, a
right of publicity in a performance that has been reduced to tangible form is
subject to preemption.” Id. If the point of this remark is not inconsistent
with the previous footnote, and if we take it as drawing a distinction between
the appropriation of a persona and unauthorized copying of one’s photograph, we
do not disagree. The point isn’t relevant to the instant case.
9
case is the same as Fleet, Inc. v. CBS, supra. The case before us
offers no such complication, as the appellee performers did not give
permission to the appellants to market their recordings or
photographs. We decline appellants’ invitation to find name or
likeness copyrightable simply because they are placed on CD’s and
tapes or in catalogs that have copyrightable subject matter recorded
on them.
The fact that section 301 does not apply does not end the
inquiry, however. Although section 301 preemption is not
appropriate, conflict preemption might be. The Supremacy Clause
dictates that a state law that obstructs the accomplishment of the
full purposes and objectives of Congress is preempted. See Hines
v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581
(1941).
The major purpose of the Copyright Act is, as the
Constitution states, “to promote the progress of Science and useful
arts.” U.S. Const., art. I, § 8, cl. 8. The legislative history
of the Copyright Act describes several other objectives: 1) to
promote national uniformity and avoid the difficulties of
determining and enforcing rights under different state laws; 2) to
have copyright protection last for a limited time period, so that
scholars and the public can benefit from the dissemination of
copyrighted materials; and 3) to improve our international dealings
in copyrighted materials. See House Report at 132, reprinted in
10
1976 U.S.C.C.A.N. at 5745-46; see also Goldstein v. California, 412
U.S. 546, 554-56, 93 S.Ct. 2303, 2308-10, 37 L.Ed.2d 163 (1973).
Although appellants argue vigorously that not preempting
appellees’ misappropriation claims would undermine the copyright
system, several considerations belie this claim. First, the right
of publicity that the misappropriation tort protects promotes the
major objective of the Copyright Act – to support and encourage
artistic and scientific endeavors.4 Second, the record here
indicates that industry practice may be to transfer rights in a
performer’s name or likeness when the copyright is transferred.5 If
that is the case, right of publicity claims will rarely interfere
with a copyright holder’s use of the creator’s name or likeness in
connection with the copyright. Third, common law on the right of
publicity appears ordinarily to permit an authorized publisher or
distributor to use name or likeness to identify truthfully the
author or creator of the goods.6 See Zim v. Western Publishing Co.,
573 F.2d 1318, 1327 (5th Cir. 1978)(holding that authorization to
publish author’s work provided implicit authorization to use
author’s name to identify work); Neyland v. Home Pattern Co., 65
4
The Supreme Court upheld a right of publicity action in Zacchini v.
Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965
(1977). There, the Court said: “the protection [afforded by state right of
publicity laws] provides an economic incentive for him to make the investment
required to produce a performance of interest to the public. The same
consideration underlies the patent and copyright laws.” Id. at 576.
5
In fact, Roy Ames purported to transfer these rights as well as the
copyright licenses.
6
Appellants did not make this argument in this litigation.
11
F.2d 363, 364 (2d Cir. 1933)(holding that an implied license to use
the name to sell goods arises if the goods have been sold or
disposed of); Kamakazi Music Corp. v. Robbins Music Corp., 534
F.Supp. 69, 77 (S.D.N.Y. 1982)(holding that the right to use a
composer’s name or likeness accompanies the grant of the right to
use the underlying compositions); Brinkley v. Casablancas, 80 A.D.2d
428, 438 N.Y.S.2d 1004 (S.Ct. 1981)(holding that an unauthorized
distribution of a model’s name or likeness was actionable);
Restatement (Third) of Unfair Competition § 47; 2 J. Thomas
McCarthy, The Rights of Publicity or Privacy §7.4 (1999).
Only if states allowed similar claims against authorized
publishers or distributors of a work (whether through copyright or
the public domain) would the purposes and objectives of the
Copyright Act be adversely affected.7 Such suits would interfere to
some extent with the uniformity of the copyright system and the
exploitation of works in the public domain. Currently, however, no
state seems to have such a law, and the general rule is as described
above. See McCarthy, supra, § 7.4. Thus, because the tort would
currently not be sustainable against valid copyright holders,
allowing the claim in this context does not impede the transfer of
copyrights or the uniformity of the copyright system.
7
Appellants did not use the common law described above as a defense
to the misappropriation charges. Thus, despite the fact that such a defense
would seem to be applicable to some of the misappropriation claims, we cannot
decide the case on those grounds or to allow it to influence our preemption
analysis.
12
Supreme Court precedent suggesting that courts should
steer a middle ground in considering Copyright Act preemption cases
supports our conclusion that appellees’ misappropriation claims are
not preempted. The leading Supreme Court case on preemption in the
intellectual property field, Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989),
found that a state statute providing patent-like protection for
ideas deemed unprotected under federal patent law was preempted, but
warned that “the States remain free to promote originality and
creativity in their own domains.” Id. at 165. The Court went on
to state that: “the case for federal pre-emption is particularly
weak where Congress has indicated its awareness of the operation of
state law in a field of federal interest, and has nonetheless
decided to ‘stand by both concepts and to tolerate whatever tension
there [is] between them.’” Id. at 166-67 (citing Silkwood v. Kerr-
McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 625, 78 L.Ed.2d 443
(1984)). As noted in the legislative history of section 301,
Congress was aware of the operation of state law on the rights of
privacy and publicity, and indicated its intention that such state
law causes of action remain.8 See House Report at 132, reprinted in
1976 U.S.C.C.A.N. at 5748.
8
Furthermore, the several cases prior to Bonito Boats that dealt with
preemption in the intellectual property field found that state laws on trade
secrets and recording piracy were not preempted by the Copyright Act. See
Kewanee Oil. Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315
(1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163
(1973).
13
Since appellees’ misappropriation claims neither fall
within the subject matter of copyright nor conflict with the
purposes and objectives of the Copyright Act, the claims were not
preempted.9
B. Damages
The jury found that Collectibles owed plaintiffs, in the
aggregate, $27,000 for the misappropriation of their names and/or
likenesses. Collectibles argues that the plaintiffs did not present
legally sufficient evidence on the commercial damage suffered as a
result of Collectibles’ use of their names and/or likenesses. We
disagree. An assessment of damages is not reversed unless it is
clearly erroneous, and review and approval of the verdict by the
trial judge, such as occurred here, makes appellate review even more
deferential. See Ham Marine, Inc. v. Dresser Industries, Inc., 72
F.3d 454, 462 (5th Cir. 1995).
Under Texas law, “[o]ne who appropriates to his own use
or benefit the name or likeness of another is subject to liability
to the other for invasion of his privacy.” Restatement (Second) of
Torts, §652C (1977); see also Benavidez v. Anheuser Busch, Inc., 873
F.2d 102, 104 (5th Cir. 1989)(recognizing §652C of the Restatement
of Torts as descriptive of Texas law); Kimbrough v. Coca-Cola/USA,
521 S.W.2d 719 (Tex.Civ.App. – Eastland 1975, writ ref’d n.r.e.)
(recognizing cause of action for misappropriation under Texas law).
9
As noted above, our conclusion might be different if Texas were to
allow such suits against authorized publishers or distributors of a work.
14
“‘To prove a cause of action for misappropriation, a plaintiff must
show that his or her personal identity has been appropriated by the
defendant for some advantage, usually of a commercial nature, to the
defendant.’” Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir.
1987) (quoting National Bank of Commerce v. Shaklee Corp., 503
F.Supp. 533, 540 (W.D.Tex.1980)). Furthermore, plaintiffs in
misappropriation of name or likeness actions are not required to
show that the defendant made money from the commercial use of the
name or likeness. See Henley v. Dillard Dep’t Stores, 46 F.Supp.2d
587, 597 (N.D.Tex. 1999).
In a misappropriation of name or likeness action, a
plaintiff may recover general damages plus any proven special
damages. See Shaklee, 503 F.Supp. at 545. “General damages are
those which naturally, proximately, and necessarily result from the
improper communications.” Moore, 828 F.2d at 277. Collectibles
argues that the evidence is too speculative to support the damages
verdict. While it is true that recovery is not allowed for damages
that are speculative or conjectural, “mathematical precision is not
required to establish the extent or amount of one’s damage.” Moore,
828 F.2d at 649. Damages must be “ascertainable by reference to
some fairly definite standard, established experience, or direct
inference from known facts,” but the plaintiff does not have to give
an actual dollar value to his injury. Id. In fact, one treatise
states: “the award of such damages [general damages in an invasion
of privacy case] is within the province of the jury and should not
15
be disturbed unless there is a clear showing of excessiveness or
impropriety on the part of the jury.” J. Hadley Edgar, Jr. & James
B. Sales, Texas Torts & Remedies §53.08[1][a] (1999).
In this case, the jury did not clearly err in its damages
verdict. The damages awarded fit the Moore criteria: the jury could
reasonably have based its estimate of the damages suffered by
plaintiffs and even the value of appellees’ names and/or likenesses
on inferences from the amounts appellees were paid to perform at
blues festivals.
C. The Notarized Contract.
The jury found that Weldon Bonner did not execute a
January 1, 1975 Recording Agreement with Roy Ames. Appellant
Collectibles argues that the evidence was insufficient to overcome
the presumption of authenticity that attaches to a notarized
contract under Texas law.10 Appellant Ames asserts that the
district court erroneously instructed the jury that the burden of
proof was preponderance of the evidence when it should have been
clear and convincing proof.
A party must object to a jury charge before the jury
begins its deliberations in order to preserve its right to appeal
that jury charge, unless the error is so fundamental as to be a
10
A jury verdict will be upheld unless, upon reviewing the entire
record, the facts and inferences point so strongly and overwhelmingly in favor
of one party that the court believes reasonable men could not arrive at a
contrary verdict. See Mosley v. Excel Corp., 109 F.3d 1006, 1008-09 (5th Cir.
1997).
16
miscarriage of justice. See Ford v. United Gas Corp., 254 F.2d 817,
818 (5th Cir. 1958); Farrar v. Cain, 756 F.2d 1148, 1150 (5th Cir.
1985). Since Ames did not object to the jury charge on the burden
of proof and the alleged error is not so fundamental as to be a
miscarriage of justice, he has waived any appeal on that basis.
Collectibles, however, has not waived its appeal as to
the sufficiency of the evidence supporting the jury verdict that the
notarized contract was invalid. It objected, on the same grounds
as it argues here, to the trial court’s interrogatory to the jury
as to whether Ames and Bonner executed said contract.
Texas law requires “clear and unmistakable proof that
either the grantor did not appear before the notary or that the
notary practiced some fraud or imposition upon the grantor ... to
overcome the validity of a certificate of acknowledgment.” Bell v.
Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330 (Tex. Ct. App.
1987); see also Stout v. Oliviera, 153 S.W.2d 590 (Tex. Civ. App.
1941).
Bonner’s daughter testified that the signature on the
Recording Agreement was not her father’s. Several documents in
evidence showed Bonner’s signature and permitted the jury to draw
their own conclusions as to the authenticity of the challenged
signature. The jury could reasonably have concluded from the
evidence that Bonner did not appear before the notary and his
signature was forged, thus overcoming the presumption of
authenticity that attaches to a notarized contract. Because this
17
inference was reasonable, we affirm the jury’s verdict that the
Recording Agreement between Bonner and Ames was invalid.
D. Leonard Brown’s Copyright in “Ain’t Got Much”
Appellants claim that because Leonard Brown’s wife wrote
the song “Ain’t Got Much” and he failed to produce a written
copyright assignment from her at trial, the district court erred in
granting him a copyright in the song.
Appellants never raised this particular objection to
Brown’s copyright in “Ain’t Got Much” at trial. To avoid being
waived, an argument “must be raised to such a degree that the trial
court may rule on it.” In re Fairchild Aircraft Corp., 6 F.3d 1119,
1128 (5th Cir. 1993); see also Harris County, Tex. v. CarMax Auto
Superstores, Inc., 177 F.3d 306 (5th Cir. 1999); FDIC v. Mijalis,
15 F.3d 1314, 1327 (5th Cir. 1994). In its April 2, 1997 motion for
judgment, Collectibles (but not Ames) challenged Brown’s copyright
on the grounds that his misrepresentation to the copyright office
of authorship of “Ain’t Got Much” invalidated his copyright
application for the entire collection it appeared in. Collectibles
did not, however, contend that Brown’s copyright in the song was
invalid because he had not produced a written copyright assignment
from his wife. In fact, at no time did Collectibles or Ames raise
that particular objection at trial. Consequently, the district
court never ruled on it. As a result, appellants have waived the
right to appeal on this ground.
18
III. CONCLUSION
The district court was correct in holding that plaintiffs’
misappropriation claims were not preempted, that sufficient evidence
supported the damages verdict, and that sufficient evidence
supported the jury’s determination that the Recording Agreement
between Weldon Bonner and Roy Ames was invalid. In addition,
appellants waived their right to argue that, because Leonard Brown
did not produce a written assignment from his wife, the district
court erred in awarding him a copyright in “Ain’t Got Much.”
AFFIRMED.
19