The New York-based 2nd Circuit Court of Appeals handles more than its share of entertainment law disputes. So how does Judge Sonia Sotomayor stack up? Surely, Hollywood, among other places, will want to know.

Two cases, involving the gifted filmmaker Terrence Malick and the extraordinarily lovely Astrud (The Girl From Ipanema) Gilberto, show Sotomayor's approach. Though not as politically salient as her stance on abortion or law enforcement cases, previously analyzed here and here, these cases shed light.

In 2001, Sotomayor authored the decision in a copyright case brought by Gilberto against Frito-Lay. Already, Suits & Sentences is struggling not to choose sides.

Gilberto shot to fame in 1964 when she, her then-husband Joao Gilberto and saxophonist Stan Getz recorded "The Girl from Ipanema." Suits & Sentences will now pause to sigh and look wistfully off into the distance. Wrenched back into the present, we read that in 1996 Frito-Lay and its ad firm BBD&O Worldwide created an ad for "Baked Lay" potato chips. Sotomayor provides this deadpan summary:

"The ad shows several famous models reclining by a swimming pool. The 1964 recording of Ipanema plays in the background. As the camera pans from one model to the next, each looks crestfallen that the bag of Baked Lays in her hands is empty. The camera moves on to Miss Piggy, also reclining by the pool, who has been eating the chips and passing the empty bags to the models, while singing along with plaintiff's recording."

BBD&O paid more than $200,000 for various licenses, but apparently did not believe Gilberto retained any rights for the song. As Sotomayor noted, Gilberto did not compose the music, write the lyrics or produce the song. She was 24 years old at the time.

Gilberto claimed, expansively, that her performance of the song amounted to an unregistered trademark. Significantly, Sotomayor concluded this was not an unreasonable argument. She stated:

"The fact that musical compositions are protected by the copyright laws is not incompatible with their also qualifying for protection as trademarks. Graphic designs, of course, may be protected by copyright; that does not make them ineligible for protection as trademarks."

Nonetheless, Sotomayor agreed that Gilberto's trademark case should be dismissed. Simply singing is not sufficient to establish legal dominion. Sotomayor declares:

"The 'signature performance' that a widespread audience associates with the performing artist is not unique to Gilberto. Many famous artists have recorded such signature performances that their audiences identify with the performer. Yet in no instance was such a performer held to own a protected mark in that recording."

This was a major victory for advertising companies and anyone else who relies upon using other people's music. As Sotomayor noted, "immense unforseen liabilities" could start piling up if performing artists could begin filing trademark claims similar to those of Gilberto. Essentially, Sotomayor did not want to disrupt settled commercial expectations.

Note to the Senate Judiciary Committee Republicans: Business friendly!

On the other hand, Sotomayor sided with Gilberto in agreeing that she might have a "right of publicity" complaint. The fact that Gilberto lacked a contract at the time she recorded the song does not mean she consented to public release of the recording.

Note to Hollywood: Artist friendly!

In June 2004, Sotomayor was part of a three-judge panel considering a battle over Malick's very fine but flawed World War II movie "The Thin Red Line." Sotomayor's colleague, Judge Richard Cardamone, kicks offs the action:

"As this case illustrates, chicanery is no stranger to some of those engaged in the film industry."

It's funny because it's true! The case revolves around a limited partnership called Briarpatch, established to "develop, produce, present, and exploit" entertainment projects.  A gentleman named Gerard Rubin contributed money, which Briarpatch used both to buy the movie rights to James Jones' novel and to pay Malick to write a screenplay. Two other gentlemen, Messrs. Geisler and Roberdeau, then sold the rights to Phoenix Pictures, which Cardamone said "earned a substantial profit" from Malick's film.

Which is funny, because Suits & Sentences always had the impression that "The Thin Red Line" did not do well at the box office.

Rubin claimed Geisler and Roberdeau had maneuvered his money out of reach, and a state court agreed that "Geisler and Roberdeau had converted $1.5 million from the proceeds they received for 'The Thin Red Line." Rubin followed up with another lawsuit, which Geisler and Roberdeau sought to shift from state court (where Rubin had won earlier case) into federal court.

OK, this is the kind of over-long backstory that needs some jazzing up. Maybe handle it as a flashback.

Sotomayor and the appellate panel rejected Rubin's efforts to move the case into state court. In this dispute over adaptation of a novel into a screenplay and a screenplay into a movie, the federal Copyright Act preempted the case. The appellate panel sent it back to the federal judge for further consideration.

Moral of the story: This seems to be a straightforward jurisdiction dispute.

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