One of the few areas left to state common law copyright is with pre-1972 sound recordings. The New York Court of Appeals took the liberty provided to erect a full-blown copyright regime in . A jury in Tennessee recently went wild, awarding serial litigant Bridgeport Music, Inc. $3.5 million for sampling in the Notorious B.I.G.'s album "Ready to Die. The case is Bridgeport Music, Inc. v. Justin Combs Publishing, 2007 WL 3010525 (6th Cir. Oct. 17, 2007), available on the Sixth Circuit website here.
The opinion has some colorful examples of home-towning by local lawyers to the jury, like
This is a joke. They think they can come down on and if it is okay to do what defendants did, then I guess you have to tell them that. But if it is not okay, if in Nashville, Tennessee, we're not going to put up with that, then it is up to you. You six people today stand for the community that we live in.
Up here in the north, down on means something else. Well, shucks, you got your award from the jury that stood up and showed them fancy Yankees, but dang it, the Sixth Circuit vacated the award as violating due process. But seriously (and it is not, I think, disparaging Southerners to satirize when they themselves play to the lowest stereotypes) the court's explanation for why it vacated the award is interesting. First, it found defendant's conduct -- making a transformative use -- was not reprehensible, with reprehensible defined as indifference to or reckless disregard of the health or safety of others, or the result of intentional malice or trickery. Second, the compensatory damage award ($366,939) was not only large, but the punitive award was deemed to be disparate to it. Finally, the court compared the punitive award to statutory damages under the Copyright Act, noting that $150,000 is the maximum.
The moral for me is that you can lead a jury to the water and get them to drink it but the horse will still stay in the corral.