The 7th Circuit U.S. Court of Appeals in Chicago has affirmed a decision dismissing a copyright claim brought by Catherine Conrad, who was a self-employed singing and dancing entertainer. Conrad calls herself the “Banana Lady” and performs wearing a costume in the shape of a giant banana.
Conrad was hired by several credit unions to perform a “singing telegram” at a credit union trade association event. Conrad claimed that she told the arrangers that members of the audience were not to take photos or video of her performing except for their own personal use. The exception to the rule that she imposed was that postings on Facebook pages would be allowed.
In Conrad’s pro se lawsuit brought against the credit union, she alleged that the organizers did not inform the audience of these restrictions until after she completed her performance. As a result, she claimed several audience members took photos and videos during the performance and posted them to the Internet.
The postings to the Internet prompted Conrad to file a lawsuit against the trade association for copyright infringement. Conrad had registered copyrights on photographs and sculptures of her and her banana costume. The U.S. District Court dismissed Conrad’s case, stating that most of the claims were precluded by the unsuccessful previous lawsuit she filed in Wisconsin state court. In addition, the trial judge said that her federal copyright infringement claim lacked merit.
The court of appeals began its opinion by noting that Conrad’s actual performance was not copyrightable, as it was not fixed in any tangible medium of expression. In order to copyright the performance, the panel continued, Conrad would have had to record or to have created a written “dance notation” of it.
The appeals panel also made note that Conrad had granted a limited license to the trade association. This license permitted the audience members to take photos or videos for their personal use. The panel noted that the arrangers might have been charged with having induced violations of 17 U.S.C. Section 1101(a), which forbids unauthorized video or tape recording of a musical performance. The panel cited Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad did not make that claim in her complaint.
The court of appeals determined that even had Conrad cited that provision in her lawsuit she would have been unsuccessful because one of the arrangers advised the audience of the prohibition at the end of the performance and Conrad did not contend that any of the photos or videos was posted to the Internet before her performance ended. Thus the panel determined Conrad’s claim lacked merit.
In conclusion, the court of appeals noted that Conrad had a history of filing frivolous lawsuits in that she had filed 8 lawsuits in federal court since 2009 and 9 cases in state courts since 2011.
It was noted that Conrad had previously been sanctioned in Wisconsin state courts in the amounts of $23,000 and $73,000 for filing frivolous lawsuits. The panel finished by stating that the Western District of Wisconsin should consider banning Conrad from filing lawsuits in forma pauperis until she has paid her outstanding litigation debts.
Accordingly, the court of appeals affirmed the dismissal of the Conrad lawsuit.
Catherine Conrad v. AM Community Credit Union, et al., No. 13-2899 (7th Cir., April 14, 2014).
Kreisman Law Offices has been handling commercial litigation matters, business contract disputes and handles mediations and arbitrations for individuals in and around Chicago, Cook County and its surrounding areas, including Glenview, Niles, Des Plaines, Prospect Heights, Deerfield, Riverside, Schaumburg, Schiller Park, LaGrange Park, Wheaton, Willowbrook, Palos Park, Harvey and Calumet City, Ill.
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