Del Rio v. Virgin America, et al.

Comment by Charles Cronin

This is an unusual music copyright infringement dispute insofar as the plaintiff’s claim actually appears to be justified by the facts. Todrick Hall, who had been hired by defendant Virgin Atlantic, enticed the plaintiff, a professional actress, to record her reading of an aircraft safety script. The plaintiff also recorded a rap music riff on the text, which she improvised at the suggestion of the defendants. Her recorded performance was then incorporated into a longer airline safety video, directed by Jon Chu (“Crazy Rich Asians”) that became popular after Virgin used it on their flights. When the plaintiff sought compensation from Virgin for use of her recorded performance, Virgin informed her that its only financial obligation was to the shadowy Todrick Hall.

Typically, in the creation of highly collaborative commercial projects like pop music albums, feature movies, etc. the financial sponsor will contract with participants establishing that their contributions will be considered works made for hire. Virgin and the plaintiff did not, apparently, have such a contract and the plaintiff is, therefore, now entitled to assert copyright ownership in the content and recording of the safety video she helped create.

Rather than accept their management blunder, and provide reasonable compensation to the plaintiff, Virgin, in its Answer, distorts the plaintiff’s claim and relevant law in a disingenuous attempt to demonstrate it owes nothing to the plaintiff. It asserts, for instance, that “Plaintiff seeks sole ownership over a sound recording…despite the fact that her own allegations demonstrate she did not have any role whatsoever in creating the allegedly infringed work.” The complaint says nothing about seeking sole ownership of the sound recording, and the portion of the sound recording she wants to be compensated for was fixed with her knowledge and professional participation.

The Answer claims that the facts of this dispute are similar to those in the recent 9^th Circuit case (2015) Garcia v. Google; they are not. In Garcia the plaintiff claimed a separate copyright in a five-second video clip that was incorporated into a short movie. In this dispute the plaintiff claims to have contributed 20% of the protectable expression in Virgin’s safety video – which would render her a joint owner of the work.

The Answer claims that even if plaintiff were a joint owner, the 2^nd Circuit’s 16 Casa Duse decision (2015) establishes that “one joint owner cannot be liable for copyright infringement to another joint owner.” But this is irrelevant: once Virgin acknowledges the plaintiff’s joint authorship, it is legally obligated to share with her profits obtained from exploitation of the work – and that is exactly what the plaintiff here seeks.

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Complaint (PDF)

Defendant’s Motion to Dismiss (PDF)

Second Amended Complaint (PDF)