Spalding Sports Can ‘Swing’ Away

EMI Lawsuit Will Not Silence Musical Words of TV Commercial
BOSTON–Hill, Holliday, Connors, Cosmopulos and Spalding Sports Worldwide recently scored a victory in U.S. District Count in New York when a judge ruled their television effort did not violate the rights of record company EMI.
In a suit filed in November, EMI Catalogue Partnership alleged that a Spalding commercial inspired by the Louis Prima composition “Sing Sing Sing (With a Swing)” infringed on their ownership of that song.
In its presentation to Spalding for work touting Top-Flite golf clubs, Hill, Holliday suggested licensing “Sing Sing Sing” popularized in the big band era by Benny Goodman. Spalding, however, opted to use stock swing music not owned by EMI, though the words “Swing, Swing, Swing” did appear on screen.
When the effort began airing nationally on golf telecasts in mid-1998, EMI asked Boston’s Hill, Holliday to pull the execution because the use of the words “Swing, Swing, Swing” might be misconstrued as an EMI endorsement of Spalding clubs. There was never any specific charge that the commercial soundtrack constituted copyright infringement.
The agency refused to remove the spots, and EMI filed a suit seeking unspecified monetary damages.
Hill, Holliday and Spalding filed for a summary judgment of dismissal, which was granted several weeks ago by Judge Robert Sweet. In his 15-page ruling, Sweet wrote: “The 30 seconds it takes to review the commercial leaves no doubt that defendants’ use is fair, not infringing, not confusing, and that no reasonable consumer could conclude otherwise.”
Hill, Holliday senior vice president Fred Criniti, who had overseen the agency’s relationship with Chicopee, Mass.-based Spalding, blasted the lawsuit as “crazy.”
The record company probably sought legal action in the hope of attaining a monetary settlement for what it would have made had “Sing Sing Sing” actually been licensed, Criniti maintained.
An EMI representative in New York did not return phone calls by press time last week.
Len Orkin, a partner in New York law firm Kay Collyer & Boose, which represented Hill, Holliday in the matter, said EMI may appeal the decision, but he believes such a move is unlikely.