Friday, February 23, 2007

Horse Cents, Maybe Not Copyright Sense

In 1971, the Nitty Gritty Dirt Band went to Nashville to record a three-LP album, "Will the Circle be Unbroken," remastered in 2002 as a double CD. The song on the album was the "Tennessee Stud," recorded by the great guitar picker Doc Watson, and written by Jimmy Driftwood. The chorus begins: "The Tennessee stud was long and lean. The color of the sun and his eyes were green. He had the nerve and he had the blood. And there never was a hoss like the Tennessee stud."

A recent case in Tennessee, Tennessee Walking Horse Breeders' Association & Exhibitors' Association v. National Walking Horse Association, 2007 WL 325774 (M.D. Tenn. Jan. 31, 2007), evidences a spill-over into copyright among competing groups of horse-fanciers. Plaintiff's organization is dedicated to the Tennessee Walking Horse, which it describes this way:

The Tennessee Walking Horse is a composition of Narragansett and Canadian Pacer, Standardbred, Thoroughbred, Morgan, and American Saddlebred stock. Originally bred as a utility horse, this breed is an ideal mount for riders of all ages and levels of experience. The breed easily adapts to English or Western gear, and its calm, docile temperament combined with naturally smooth and easy gaits insure the popularity of the Tennessee Walking Horse as the “world’s greatest show, trail, and pleasure horse”.

Defendant's organization is more generally devoted to walking horses. Its website states:

The National Walking Horse Association (NWHA) is as alliance of people committed to preserving and fostering the natural abilities and welfare of the Walking Horse.
The NWHA improves the lives of horses and people by encouraging responsibility and sportsmanship. It promotes educational and recreational activities, while preserving the unique qualities of the Walking Horse.

There is an overlap in membership in the two groups, and an overlap in their respective activities, including issuing registry certificates attesting to a horse's bona fides as a walking horse. Another overlap, alleged by plaintiff, was copyright infringement by defendant of its registry and registry certificates. The court agreed, granting plaintiff's motion for summary judgment. The court's opinion leaves some discomfort though. With the registry certificates (presumably graphic works), defendant argued that only 7 out of 158 colors (of the horses themselves) were in common. Color in this context is a fact; it is a fact that there are horses of this color, but the court seems to have thought otherwise perhaps because the defendant was found to have copied almost verbatim from plaintiff's certificates. Without seeing the certificates, it is not possible to assess this, but I would assume there were important differences too, given the different names of the organizations (leading to a different visual layout) and defendant's wider scope.

As for the registry, a compilation, the court found originality in which horses to designate as foundation horses and the choice of which horses to deem pure breds, and the acceptable colors and markings. Defendant was held not to have independently done its own work but to have copied from plaintiff's work. Its a close call whether these choices evidence the type of judgment deemed sufficiently original, whether to say, yay or neigh.

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