Entertainment Law Reporter
July 2006 Volume 28 Number 2

Composer fails in bid to enjoin further distribution of “Brokeback Mountain,” in suit alleging movie’s theme song infringes copyright to one of his songs, because, as a result of his delay in filing suit, composer failed to show he would suffer any irreparable damage not already suffered

Yale-trained composer Douglas Berlent claims that the copyright to his song “Slow Dance” has been infringed by the theme song for the movie “Brokeback Mountain.” Titled “The Wings,” that song is credited to Argentine composer Gustavo Santaolalla whose music for the movie was awarded an the Oscar for Best Original Score.

Berlent made his claim in a copyright infringement suit filed against Focus Features, the company that produced the movie. Taking an aggressive stance, Berlent made a motion for a preliminary injunction, shortly after filing the case.

Preliminary injunction motions are not unusual in copyright cases, but the timing of Berlent’s lawsuit was. The lawsuit was filed eight months after trailers for the movie (featuring “The Wings”) began showing, five months after the movie’s soundtrack album was released, four months after the movie opened in theaters, one month after Santaolalla won an Oscar, and one week after DVD’s of the movie went on sale.

Berlent had a reason for the delay: he is legally blind, he says, and thus doesn’t go to theaters to watch movies. He filed his lawsuit just one month after he heard the movie’s theme song on a TV commercial advertising the forthcoming DVD.

Federal District Judge Stephen Robinson acknowledged that irreparable harm is presumed whenever a prima facie case of copyright infringement is shown. In this case, though, Judge Robinson concluded that the presumption didn’t apply, because Berlent had already suffered whatever irreparable damage he may have suffered, before he filed his lawsuit. As a result, the judge denied Berlent’s motion.

Berlent v. Focus Features, 2006 WL 1594478, 2006 U.S.Dist.LEXIS 41095  (S.D.N.Y. 2006)