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Burbank High Vocal Music Association Wins Landmark Ruling In Tresona Copyright Suit

The Burbank High School Vocal Music Association won big in the copyright infringement suit brought against them by Tresona Multimedia, LLC, with a recent judgement from the 9th Circuit Court of Appeals, filed on March 24.

The 9th Circuit panel of three judges found in unanimous favor, again, for BHS VMA Booster Association and BHS vocal music teacher Brett Carroll and ordered Tresona to pay all legal fees for the defendants. In the published opinion, which can be found online here, the panel of judges published a negative view of Tresona’s actions.

The judges also ordered Tresona to pay the defendants’ attorney fees and costs of the court because they felt it would be a deterrent to those trying to file similar lawsuits against public school teachers and music education programs.

Tresona had appealed a judgement by Federal District Court that found in favor of the BHS Boosters, Carroll and several Booster Association parents, regarding its 2017 copyright infringement lawsuit in which the company alleged the use of snippets of popular songs during a BHS show choir fundraising concert, which raised money for the program through ticket sales and program ads, constituted copyright infringement.

The 9th Circuit Court found: “This use was not of a traditional commercial nature, but rather for the nonprofit education of the students in the music program.”

Burbank High’s In Sync performs at the January 2020 Music Is Instrumental public school education fundraising concert. (Photo By Ross Benson)

The 9th Circuit also found that Tresona, which claimed to have exclusive rights to the 79 named songs in the original complaint, did not have contractual licensing rights with all of the songwriters of those songs. So, Tresona lacked standing to sue in most cases of the 79 songs named in the original complaint.

The Court stated, “Tresona repeatedly mischaracterized its copyright interests in the songs at issue by claiming to be the sole entity empowered to issue licenses. In light of Tresona’s minimal and belatedly produced evidence supporting its claimed chain-of-title, these communications appear specifically designed to frighten Carroll and the Boosters Club into purchasing licenses from Tresona, rather than to legitimately enforce its limited licensing interests or those of the true copyright owners.”

The 9th Circuit also found the the Burbank High show choir’s use of copyrighted material fell under “Fair Use,” as Carroll used the songs to teach music in his public school program.

Text from pages 29-31 of the 9th Circuit Court judgement:

Tresóna did more than simply pursue an aggressive litigation strategy. It sued a public school teacher, a not-for-profit Boosters Club, and parent volunteers. Both during litigation, and in pre-litigation communications with Carroll, Tresóna repeatedly mischaracterized its copyright interests in the songs at issue by claiming to be the sole entity empowered to issue licenses. In light of Tresóna’s minimal and belatedly produced evidence supporting its claimed chain-of-title, these communications appear specifically designed to frighten Carroll and the Boosters Club into purchasing licenses from Tresóna, rather than to legitimately enforce its limited licensing interests or those of the true copyright owners. Indeed, Tresóna’s initial complaint alleged exclusive rights in 79 songs used by the Burbank show choirs. And it was not until after briefing on Carroll’s summary judgment motion was complete that Tresóna belatedly produced any evidence of its chain of title, which demonstrated its claimed interests were almost entirely unsubstantiated. None of these actions furthers the purposes of the Copyright Act. SOFA Entm’t, 709 F.3d at 1280–81.

Courts have a legitimate interest in deterring the type of litigation conduct in which Tresóna engaged, and in compensating those who have been harmed by such conduct. Although the district court noted that it “[did] not believe that [Tresóna] will groundlessly reassert these claims,” the basis for that finding is unclear. Tresóna groundlessly asserted at least three claims of infringement in this very case, while simultaneously representing that it could have brought many more such claims. And while, after almost four years of litigation, Tresóna turned out to have standing as to the fourth remaining claim of infringement, it lost both in the district court and on appeal on two independent legal theories. As much of this litigation was avoidable from the beginning based on settled law when Tresóna filed its complaint, awarding attorneys’ fees to Defendants appropriately serves the interest in deterrence. See Kirtsaeng, 136 S. Ct. at 1987 (explaining that awarding fees encourages “[t]he copyright holder with no reasonable infringement claim . . . not to bring suit in the first instance”).

Awarding Defendants their attorneys’ fees insures that they are properly compensated for defending against overreaching claims of copyright infringement and pressing a defense that benefits those educating our youth. An award of attorneys’ fees here assures that “an overzealous monopolist [cannot] use his copyright to stamp out the very creativity that the [Copyright] Act seeks to ignite,” SOFA Entm’t, 709 F.3d at 1278, allowing for greater breathing room for classroom educators and those involved in similar educational extracurricular activities.

The 9th Circuit Court’s judgement is a landmark ruling that affects music education programs across the United States and is one of the first cases of its kind to reinforce the concept of “Fair Use” as outlined in Federal Copyright Law, which addresses music usage in educational non-profit settings.

“A Far Off Place” Benefit Concert Slated To Raise Funds For Burbank Music Programs

Burbank and John Burroughs High School instrumental and vocal music students join professional studio musicians from the Musicians At Play Foundation for the annual benefit concert to raise funds for their music programs on Saturday, January 11. The 2020 concert is called A Far Off Place and features music by John Williams and James Horner.

Proceeds from donations, the silent auction and ticket sales will support the Music Is Instrumental campaign that seeks to raise more than $100,000 annually to support vocal and instrumental programs at Burbank and Burroughs High Schools.

The Musicians At Play Foundation has provided music mentorship to the young instrumentalists for the past several years. The 2020 concert marks the third annual fundraising concert and the culmination of weeks of preparation and mentorship.

“Don and April Williams have created an invaluable organization that brings critically needed support to music education in the Burbank School District,” commented internationally-recognized Maestro Anthony Parnther, who will conduct the concluding collaborative performance of the show.

“Musicians At Play also seeks to preserve the tradition and integrity of cinematic music through the teaching and performance of John Williams’, Michael Giacchino’s and other leading composers’ most iconic scores.”

“The chosen students in the Burbank Unified School District are the only in the world to have the opportunity to perform these world-famous scores alongside some of the very musicians who have recorded them in the Hollywood studios over the last thirty-five years,” Parnther added. “Each participating young musician is taken through eight weeks of workshops preparing for this concert and then mentors with L.A.’s finest in this inspiring week-long masterclass on musicianship, leadership and citizenship.”

Conductor Anthony Parnther leads the BUSD All District Orchestra in a rousing performance of music from film and television. (Photo By Ross Benson, May 2018)

“The goal of the MAP Mentor program is to give students the opportunity to sit, learn and perform next to a true professional,” explained program director Don Williams. “Students learn all the disciplines of how to become a professional musician.”

“To have a chance to play the original music from these iconic scores is inspirational and vital in their development as well rounded people as well as musicians,” Williams also said. “This experience will stay with them for the rest of their lives.”

What began as a campaign to raise more than one million dollars over ten years to fix and replace instruments three years ago has morphed into an ongoing mentorship program and awareness campaign to support the high school instrumental and vocal music programs.

“Music is one of the most empowering things you can give a young person,” commented John Pedersen, a supporter of the Music Is Instrumental campaign who describes himself as “simply a wind instrument repairman with over 55 years experience, currently working in a school music focused retail store – Bertrand’s Music – in Burbank.”

“Middle school is the time in a young person’s life when they figure out they are capable of doing something for themselves,” Pedersen also said. “The disciplines learned give them a feeling of ownership over what they have done. Mom and Dad cannot practice for them. They must do it and when they do… they get the prize.”

“They will realize the work they did gives them something no one can take away from them.”

music is instrumental

Burbank Unified All District Symphonic Orchestra and Choir and professional mentors from Musicians At Play Foundation amazed the audience at Burbank’s Wolfson Auditorium for the Music Is Instrumental fund-raising concert. (Photo By Ross Benson, May 2018)

“Once they taste this empowerment, we have just started being good teachers,” Pedersen continued. “After that, we continue to guide them with our experience.”

“It’s a beautiful thing… whether or not all students become professional musicians is not important. The EMPOWERMENT is important.”

A Far Off Place will feature programs from the advanced instrumental and vocal groups from Burbank and Burroughs High Schools – John Burroughs HS Powerhouse and Vocal Ensemble, Burbank HS InSync, John Burroughs HS Wind Ensemble and Burbank HS String Orchestra – in the first half.

After intermission, students from both high schools comprising the Burbank Unified School District Symphonic Orchestra and Choir will join their mentors from the Musicians At Play Foundation to perform selections from Avatar, Raiders of the Lost Ark and Home Alone.

Tom Kenny, the voice of Spongebob, will emcee the show.

The VIP reception and silent auction begins at 5:30 p.m. and the concert at 7:00 p.m. VIP tickets are $40. General admission adults are $20 and students/seniors are $10. Tickets are available in advance online or at the box office ahead of the show.

A Far Off Place will be performed at John Burroughs High School auditorium located at 1920 W. Clark Avenue in Burbank. Plenty of free parking is available in adjacent lots.

For more information on the Musicians At Play Foundation, visit their website.

(Image Courtesy Burbank Unified School District)

Burbank High VMA Celebrates “Night Of Magic”

Burbank High School’s Vocal Music Association celebrates and raises much-needed funds with an evening of dinner theater, “Night of Magic,” starting at 6:30 p.m., Saturday November 9, at Pickwick Gardens. The evening begins with a spectacular silent auction featuring over 200 gift baskets and features a full-course dinner served with style.

The dinner beings at 7:15 p.m., with Master of Ceremonies Sean Holland and entertainment featuring VMA groups In Sync, Impressions, Sound Dogs and Out Of The Blue. Between sets, auctioneer Bruce Osgood will conduct a live auction of some exciting items, such as: Laker tickets, a trip to a Broadway show in New York City and tickets to Orlando to visit Disney World and Universal Studios. Contact Kristin Calderwood for tickets at kristin@mediacitychurch.com or 818-434-7084.  Tickets are $80 per person and complete tables are able to be reserved. All proceeds benefit BHS VMA and more information about the sensational high school vocal program can be found at www.bhsvocal.com.

Burbank Students preform at 'Night of Magic'    (Photo By Ross A, Benson)

Burbank Students preform at ‘Night of Magic’ (Photo By Ross A, Benson)