Page:Forward v. Thorogood (985 F.2d 604).pdf/4

  rather than his encouragement to the Band or his logistical support.

The district court found that “Forward made no musical or artistic contribution” to the tapes, explaining that Forward did not serve as the engineer at the sessions or direct the manner in which the songs were played or sung. 758 F.Supp. at 784. The trial judge noted that Forward did request that certain songs be played but “the band then played those songs in precisely the same manner that it always played them.” Id. The district court’s concise and unqualified findings are fully supported by the evidence.

Forward has only one legal prop for his contrary claim and it is a weak one. In the House Report on the Copyright Act of 1976, the committee observed that the copyright in sound recordings “will usually, though not always, involve ‘authorship’ both … [by the artist and by] the record producer responsible for setting up the recording session, capturing and electronically processing the sounds, and compiling and editing them to make the final sound recording.” H.Rep. No. 94–1476, 94th Cong., 2d Sess. 56 (1976). It is apparent from this passage that the “producer” envisaged by the committee is one who engages in artistically supervising and editing the production. See generally 1 Nimmer § 2.10[A](2)(b), at 2–150 to 2–151. That is exactly what Forward did not do in this case.

The Band has sought an award of attorney’s fees expended in this court, arguing that Forward’s appeal is frivolous. We think that the appeal comes very close to the line but does not quite step over it and therefore deny the motion.

Affirmed.

Before BREYER, Chief Judge, TORRUELLA, SELYA, CYR, BOUDIN and STAHL, Circuit Judges, and HORNBY, District Judge.

The panel of judges that rendered the decision in this case having voted to deny the petition for rehearing and the suggestion for the holding of a rehearing en banc having been carefully considered by the judges of the Court in regular active service and a majority of said judges not having voted to order that the appeal be heard or reheard by the Court en banc,

It is ordered that the petition for rehearing or a suggestion for rehearing en banc be denied.