No Harm to Prevent When It Is Eight Months Later

Berlent v. Focus Features makes the lesson, again, that on the merry-go-round of preliminary injunctions, that old adage, “thems as snoozes loses” never gets stale.

Berlent, a New York composer, sued all the producing parties of the movie, Brokeback Mountain, claiming that the movie theme song was a copyright infringement of Berlent’s own song, “Slow Dance”.

The Southern District of New York never got to the merits, but looked at the timeliness of the filing of the law suit relative to the harm that the action was seeking to prevent. As Berlent filed the action eight months after the first public release of the movie trailer; five months after the soundtrack was released; four months after the movie was released; AND, one month after the Academy awarded “Best Original Score” for the music at issue, the court held that the only rights to be discussed were after a trial. Motion for Preliminary Injuntion denied.

Berlent, in the complaint, acknowledged that he was already in the intolerable position of watching someone else get an Oscar for music that Berlent had written and for which he got no credit. Berlent claims that he only heard the music when a television advertisement presaged the release of the DVD of ‘Brokeback Mountain’.

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