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The Fifth Circuit's Sense of Humor

By William Patry

OK, so other than well-known hipsters like Chief Judge Kozinski, court of appeals judges are not know for their slyness, much less a panel of them. But the Fifth Circuit has issued, per curiam, an opinion, that evidences a refined sense of the silly. The opinion in Armour v. Defendants (love the caption too!), 2007 WL 4465192 (5th Cir. Dec. 21, 2007).

Here is the beginning:

PER CURIAM:

1. Armour's hook repeats twice and accompanies the following lyrics:

Let me know what you wan-na do, ba-by it's your call

Got-ta l'il bit a love for you, I can stop it or make it grow

Let me know what you wan-na do, ba-by it's your call

Got-ta l'il bit a love for you, I can stop it or make it grow

Beyonc's hook repeats four times and accompanies the following lyrics:

Ba-by boy you stay on my mind, ful-fill my fan-ta-sies

I think a-bout you all the time, I see you in my dreams

Ba-by boy not a day goes by, with-out my fan-ta-sies

I think a-bout you all the time, I see you in my dreams

The lyrics differ in word and substance: Armour's evince somewhat less love for her ?ba-by?-?a l'il bit?-and somewhat more control over such love, which she can ?stop? or ?make grow;? Beyonc's suggest a deeper and more stubborn love, which pervades her thoughts, dreams, and ?fan-ta-sies.? Yet, though the nature and depth of their loves may differ, Armour claims they find expression by way of the same musical melody.

The opinion then digresses into boring law-talk, albeit with the unusual paragraph form, with each paragraph consisting of about two sentences, or merely a cite. The case is a typical one of an unknown suing a well-known over similarities and access that doesn?t exist. There is one worthwhile passage on the attempted close relationship form of inferred access:

16. Although other circuits have presumed access on the basis of a ?close relationship? between the third-party intermediary and the alleged infringer, Armour has not offered reasonably probative evidence to establish that Beyonce and T-Bone had a close relationship. See Towler, 76 F.3d at 583 (reasoning that a court may infer access if intermediary has a ?close relationship? with infringer); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 944 (8th Cir.1992) (finding access where intermediary was ?in a position to provide suggestions? to infringer). McKinney's affidavit proves only that McKinney personally believes Beyonc and T-Bone to be good friends and does not indicate any basis for that belief. Although credibility determinations at summary judgment are resolved in favor of the non-moving party, the full weight of McKinney's affidavit establishes at most that he honestly believes them to be good friends.

17. In her deposition, Beyonce admits that she knows of T-Bone but maintains that they are not friends and do not communicate with one another ?at all.? Armour has presented no evidence to refute Beyonce?s claim.

But what I loved about the opinion was its dashing beginning.

Full post as published by The Patry Copyright Blog on December 24, 2007 (boomark / email).