House of Bryant, the administrators for the song “Rocky Top,” sued A&E Television Network for copyright infringement of the song based on an authorized clip of the song included in an episode of the television show “City Confidential” featuring a crime that took place in Knoxville, TN. 

The City Confidential episode aired on December 11, 2004 and included a 12-second clip of the song “Rocky Top.”  The song is included in a scene of a University of Tennessee football game as performed by the school’s marching band.  Defendant’s Memorandum in Support of its Motion to Dismiss states: “During this brief sequence, and as part of the actual noise occurring within the stadium, the UTK marching band can be heard playing an instrumental version of the musical composition “Rocky Top.” The song is audible for a total of approximately twelve seconds; however, the tremendous noise of the crowd and the narration of the documentary obscure the song for approximately six of the twelve seconds. Therefore, the song “Rocky Top” can be heard on its own for only six seconds of the Program.”

A&E, citing the 2008 court ruling regarding the use of the song “Imagine,” argues the usage was “fair use” which is a defense to copyright infringement. In the “Imagine” case, Yoko Ono -- the plaintiff, was denied an injunction for an unauthorized use of the song “Imagine” in the film Expelled, with the court holding the defendant/alleged infringer was likely to prevail on a fair use defense.  A&E, like the defendant in the “Imagine” case, is relying on the transformative nature of the use.  The Defendant’s Memorandum in Support of the Motion To Dismiss argues the use of “Rocky Top” is transformative in that it is used to portray the atmosphere around Knoxville and the lyrics, used in context with the subject matter of the murder mystery, are a commentary on what life should be like in Tennessee.

The first air date of December 11, 2004 does not seem to be contested by either party. The episode has continued to air.   The Complaint was filed June 3, 2009.  I am wondering why A&E has not raised the defense of statute of limitations because the three year statute of limitations found in 17 U.S.C. sec. 507(b) should apply.  The section states that “no civil cause of action may be brought later than three years from the date the claim accrued.”  It is possible the parties had a tolling agreement while they attempted to resolve the matter outside of the court house.

You can read the complaint here.  House of Bryant Publications, L.L.C. v. A&E Television Networks, Middle Dist. Tenn., Civil Cause No. 3:09-cv-00502.

You can read the Defendant’s Brief In Support of the Motion to Dismiss here.