Brown v. Ames

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

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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

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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

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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

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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.

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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.

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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.

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