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Can an Heir Sue for Copyright Infringement?

A new case involving the intellectual property rights of the heirs of the composer of a popular television show may test the limits of who may sue for copyright infringement. In late March 2015, the children of Morton Stevens, the award-winning TV and film music composer who created the theme music for the show Hawaii Five-0, sued CBS for copyright infringement in federal court in Los Angeles.

The original Hawaii Five-0 television show ran from 1968 to 1980. Mr. Stevens created an iconic theme song, and he created it prior to 1978. This is the magic date that provides that when an author dies before the original term of a copyright grant expires, the rights in that material revert to the heirs. CBS nonetheless filed a "renewal registration" for the Hawaii Five-0 theme song in 1997. CBS will likely argue the heirs cannot now bring their suit, but recent Supreme Court precedent indicates the heirs' decision to wait was not fatal to their claims.

A 2014 Supreme Court opinion written by Justice Ruth Bader Ginsburg declined to require heirs to sue soon after learning of a wrongful renewal filing. In that case, the daughter of the author whose works became the basis for the film Raging Bull sued MGM and 20th Century Fox for copyright infringement. The plaintiff's father had died before the original copyright term expired, and she argued she should have rights to his copyright claims. However, heirs need not sue right away.

Copyrights are enforced in federal court. The owner of the copyright (here, the children of Mr. Stevens) are asking the court to issue orders preventing further violations (injunctive relief); award money damages; and award attorney's fees. The heirs' success depends on whether the alleged infringer (CBS) can raise plausible defenses. To successfully defend against these claims, CBS may try to raise a number of defenses. For instance, it will likely try to argue that too much time has passed since the infringing act and the lawsuit. Or, CBS could argue that they had some license or other authorization to use the protected material.Mr. Stevens' heirs have alleged that CBS prepared a "new derivative recording of the Hawaii Five-0 Theme and embodied it in the New Series and Soundtrack Album." The heirs also alleged that CBS did not have their permission to incorporate the music into the show's theme song, when the show rebooted in 2010. In fact, the heirs allege that CBS illegally incorporated their father's music into more than 100 episodes of the current version of the show. The heirs seek damages for illegal profits, or, in the alternative, $150,000 per infringement, as well as an injunction against further infringement.

If you believe your copyrights are being infringed on, contact the experiencedOrange County copyright lawyers at MYERS BERSTEIN LLP today.

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