Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


April 11, 1990


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Plaintiffs allege that defendants infringed a copyright plaintiffs hold in a song entitled "Life Is a Rock (But the Radio Rolled Me)." The alleged infringing work is a song that appears in various renditions in commercials of defendant McDonald's Corporation ("McDonald's").


The following facts are not in dispute, except where noted. In the early 1970s, plaintiffs Paul DiFranco and Norman Dolph wrote "Life Is a Rock (But the Radio Rolled Me)" (hereinafter referred to as "LIFE"). An arrangement of this song by DiFranco and plaintiffs Mark Bellack and Joseph Levine was recorded by a group called Reunion and released by RCA in 1974. The song became one of the ten most popular songs in the United States shortly after it was released and sold more than 750,000 copies.

The song consists of a verse section, which is at issue here, and a chorus section, which is not at issue in this case. The lyrics of the verse section of LIFE consist of a list of Rock and Roll icons.*fn1 The verse section utilizes what the parties call a "patter" technique, in which the words are sung in a rapid tempo. The patter section of LIFE is nine measures long and consists of the pitch "G" repeated 128 times in a constant sixteenth note pattern, followed by eight repetitions of the pitch "A" (one step up in the scale), and ends with eight repetitions of "G" again.

Plaintiffs obtained certificates of registration of claims to copyright in versions of LIFE from the United States Copyright Office on December 1, 1972 and August 22, 1974.

Defendants' work at issue is a song used in various renditions in McDonald's commercials in February 1989, called the "Menu Song" ("MENU"). That song also includes a patter section, the lyrics of which recite the food and beverage items on the McDonald's menu.*fn2 The patter section of MENU also consists of the rapid singing of the lyrics in a constant sixteenth note pattern of one or two pitches.

Plaintiffs have submitted evidence that members of the public who were exposed to the McDonald's commercials using MENU identified MENU as being similar to LIFE. For example, radio disc jockeys announced their opinions that the songs were identical, and trade publications received letters noting the similarity of the songs.

A third work is relevant to this case, as defendants argue that certain elements of MENU were taken from it rather than from LIFE. In 1987, defendant Leo Burnett Company, Inc. ("Burnett") retained Levine and his company, Joey Levine Crushing Music, to compose a jingle for its client, McDonald's. Levine and Crushing Music composed a song entitled "Good Time/Great Taste McDonald's" (hereinafter "GOOD TIME/GREAT TASTE"). Levine thereafter assigned all rights to GOOD TIME/GREAT TASTE to Burnett as agent for McDonald's. GOOD TIME/GREAT TASTE has been used in numerous McDonald's commercials since 1988 as McDonald's theme song.

Defendants have submitted an affidavit and reply affidavit of Earl V. Spielman, a musicologist, in which he concludes that the underlying melody and harmony of MENU is the same as that of GOOD TIME/GREAT TASTE, that the harmony of LIFE is a basic blues progression, and that the patter melody of LIFE lacks creativity and originality. On this basis the defendants claim that the verse section of LIFE is not protectible under the copyright laws and Lanham Act. Plaintiffs have submitted the affidavit of Judith Finell, also a musicologist, in which she concludes that the harmony of MENU is "strikingly similar" to the harmony of LIFE, that LIFE's harmony is not a basic blues progression, that the two songs are substantially similar in a number of ways, and that the patter section of LIFE evinces significant creativity.

Defendants move for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment in their favor on plaintiffs' copyright and Lanham Act claims on the ground that there is no similarity of protected expression between the works at issue. Plaintiffs, in addition to opposing defendants' motion for summary judgement, move for an order pursuant to Rule 56(d) specifying that there is no genuine issue of material fact with respect to (a) whether plaintiffs are the owners of valid and enforceable copyrights in LIFE, (b) whether LIFE was copied in the making of MENU, and (c) whether MENU is substantially similar to LIFE.*fn3


Summary judgment under Fed.R.Civ.P. 56 will be granted only if the movant shows that (1) there is no genuine issue as to any material fact, and (2) movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the "fundamental maxim" is that the court "`cannot try issues of fact; it can only determine whether there are issues to be tried.'" Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)). "Moreover, in determining whether a genuine issue has been raised, a court must resolve all ambiguities and draw all reasonable inferences against the moving party." Id. at 57. See also Merritt Forbes v. Newman Investment Securities, Inc., 604 F. Supp. 943, 952 (S.D.N Y 1985). The existence of contradictory expert affidavits does not preclude summary judgment unless those affidavits establish the existence of a genuine issue of material fact.

A plaintiff may establish a copyright claim by demonstrating (1) the ownership of a valid copyright, (2) that the infringer had access to the plaintiff's work, and (3) that protected elements of the two works are substantially similar. Walker v. Time Life Films, 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986); Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989). For purposes of this motion, defendants ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.