PhotobucketLionsgate has been hit with a copyright infringement lawsuit for music that was included in the documentary “More Than a Game.” The documentary follows LeBron James and his teammates through their high school basketball careers. The infringement issue comes from a clip of the team performing their pre-game motivational chant. Watch it here. In the clip you can hear one of the players say, “it’s exactly what the song says, ‘we ready’”. What song is that? Mason Hall who goes by “Big Mace” believes it is the song he wrote, and Archie Eversole performed entitled “We Ready.” Mason Hall filed a suit in Georgia Federal Court last month against Lionsgate and Interscope LeBron LLC for using the song “We Ready” without a license. Hall wants the court to issue an injunction against further use, and award punitive damages of more than $1 Million or maximum statutory damages for copyright infringement. Statutory damages can be as much as $150k per infringement, along with full costs including attorney’s fees.

Before Mason can run to the bank he has quite an uphill battle. First he would have to show that the song used in the movie was his. This first step is the least of his worries. I think it is relatively clear that the chant was derived from his song. Next, he would have to fend off defenses of fair use, de minimis use, and that the words “we ready” may not protected. It is important to mention that Hall and the other songwriters simply paired the words “we ready” to the famous notes in Steam’s song “Na Na Hey Hey Kiss Him Goodbye.” The court might be interested to know if the songwriters of “We Ready” obtained a license from Steam to use their famous melody. This would be important because how can Hall sue for the infringement of two words if he believes he does not need a license for the four notes taken from Steam. If the court does find that Lionsgate infringed Hall’s copyright, he still risks the court awarding little to no punitive damages or limiting statutory damages to as low as $200 per infringement. Keep in mind Hall would have to account to his five co-authors for any income obtained by the lawsuit.

The Georgia Federal Court has an interesting case before it. The phrase “we ready” is a common idiom of the English language and therefore may not be protected by copyright law. If the court does find that the phrase “we ready” is protected as part of Hall’s song, the court still may find that the phrase was so minimal (de minimis) compared to the entire work, and that the average person would not know the source of the phrase, and therefore would not be protected. The court will also consider whether the use was reasonable and acceptable under a fair use defense. In addition to looking at the facts, the court will balance the policy considerations of deterring copyright infringement with the slippery slope of granting insignificant infringement claims which would open the door for many other insignificant infringement claims.

I feel that Lionsgate either dropped the ball, or didn’t want to pay to license the song. It is difficult to imagine that someone on the Lionsgate team did not catch this possible issue; I think it is clear from the comments made in the movie that the chant was taken from a song. The next questions they would ask themselves would be: What song? Good thing they can go directly to the source and ask LeBron what song the chant was based on. If Lionsgate would have simply obtained a license, they could have avoided this whole mess. If the case does not settle before a verdict is given, it will be interesting to see how the Judge deals with these issues. Either way the Judge and his team should chant “We Ready” in chambers before he delivers the verdict.

What do you think? You be the Judge, how would you decide this case?

On a side note, I’m sure Lionsgate’s team of attorneys will perform Drew Brees’ pre-game chant out in the hallway before oral arguments begin, but the chant will be performed without a performance license because Lionsgate likes to roll the dice.