The composer who is suing over Hans Zimmer's score to the Oscar-winning film 12 Years a Slave has barely survived the first round, losing some of his more legally audacious claims after a judge reviewed 20th Century Fox's motion to dismiss.
Richard Friedman alleges that his 2004 composition titled "To Our Fallen" was improperly used to create the main theme. His lawsuit proposes an interesting theory on access: His work was included in a 2008 episode of the ABC series Desperate Housewives and created at the same recording studio used by Zimmer to do his score for 12 Years a Slave.
Among Friedman's claims was that the defendants had violated the Lanham Act by advertising and promoting "music by Hans Zimmer" rather than "music by Richard Friedman."
This claim had Fox telling the judge about Dastar Corp. v. Twentieth Century Fox Film, which not only was one of its most famous legal losses, but has created some discussion thanks to a musing by Supreme Court justice Antonin Scalia.
The Dastar opinion involved a company that had taken a World War II television series that had fallen into the public domain, making minor edits, and then selling it to the public as its own work without crediting the original series. Worried about overextending trademark-related protections, Scalia held that when we talk about "confusion ... as to the origin" of goods, we're referring to the "manufacturer or producer of the physical ‘goods,’ ” not “the person or entity that originated the ideas or communications that ‘goods’ embody or contain.”
Fox argued that this foreclosed a dressing-up of copyright claim as false advertising while the other side pointed (as we did in a prior post) to Scalia's re-writing of the facts in the Dastar case to suggest that a defendant might still be sued for misrepresentation.
On Friday, U.S. District Judge George H. King says such a claim "might be viable if the seller’s misrepresentation leads consumers to believe they were buying one product when they were really buying another." Reviewing some legal precedent, he even gives the example that "a seller cannot advertise a CD as containing 'All Along the Watchtower' sung by Jimmy Hendrix [sic] when it actually contains a recording of Bob Dylan singing the same song. That would give consumers the impression that the CD they were buying was 'quite different' from what it actually was, which would be a misrepresentation of the nature, characteristics, or qualities of the good."
But King attempts to put some space between what's above and a false designation of authorship. Ultimately, the judge concludes that Friedman's Dastar-type claims of wrongful credits aren't viable.
As a result, Friedman will have to fall back on the plain old vanilla claim of copyright infringement -- whether Zimmer's work is substantially similar to his own. The judge has a lax standard for copyright claims at the motion-to-dismiss phase, not minding Fox's argument that Friedman should be required to allege how each defendant (including Sony Music and some small production companies) infringed the plaintiff's copyright. King says Friedman needn't be more specific yet, writing that before discovery, he has "no reasonable means of determining the roles that the Moving Defendants played in producing and distributing the Film."
As the case goes forward, Friedman will also have to constrain himself to American copyright law. In his lawsuit, he attempted to bring claims that the defendants violated his artistic moral rights under German and French laws, but the judge elects to decline jurisdiction over the issue of whether Friedman can claim authorship based on a foreign approach to copyright.
This article originally appeared in THR.com.