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Former Chicago Bears players' suit joins other "Super Bowl Shuffle" dispute in federal court; parties likely to face off over venue

By Kenneth Lowe | May 5, 2014

Nearly three decades years after the fact, the "Super Bowl Shuffle" remains a fond memory for Chicago Bears fans.

It also marks a contentious copyrighted work now at the center of two pieces of litigation, one of which was removed late last month from Cook County Circuit Court to federal court, where it joins another suit stemming from the 1985 video of Bears players rapping in their uniforms.

Whether the recently-removed suit will remain on federal turf, however, is unclear as a judge noted earlier this month a request to remand the matter back to state court is anticipated.

In January, Richard Dent, Steve Fuller, Willie Gault, Jim McMahon, Mike Richardson and Otis Wilson-- all members of the "Shufflin' Crew" that helped immortalize the 1985 Chicago Bears by virtue of their performance in the video-- sued Renaissance Marketing Corp. and Julia Meyer, who hold the copyright to the video.

Filed in circuit court, the suit alleged, among other things, unjust enrichment related to the Super Bowl Shuffle.

Meyer and Renaissance last month filed a notice to remove the suit to federal court, asserting that the claims in the suit actually amount to a copyright dispute, a matter that falls under federal jurisdiction.

"The complaint repeatedly states that it is seeking relief based on the copyrighted Shuffle, though it artfully does not use the term 'copyrighted,'" the defendants allege in their April 25 notice.

A few days after that filing, they asked U.S. District Judge Edmond E. Chang to dismiss the suit, arguing that it needs to be tossed because it fails to state a claim upon which relief can be granted, is preempted by the federal Copyright Act and was brought after the three year statute of limitations for copyright claims.

Chang, according to electronic court records,  denied the defendants' dismissal request on May 2, saying it was "premature, in light of the anticipated motion to remand and the threshold question of subject matter jurisdiction."

He gave the former Bears players until May 19 to file a remand request if they decide to make that play. If they do, the defendants will have until June 2 to respond and they will have to reply by June 9. Chang also reset a May 16 status hearing for June 17.

The former Bears players' suit accuses Renaissance of handing over rights to the Super Bowl Shuffle song to Meyer's now-deceased husband without the consent of at least a majority of the Shufflin' Crew in violation of the original royalty agreement.

The January suit notes the plaintiffs only recently learned of the copyright's assignment to Meyer's husband and its transfer to her.

"The Shufflin' Crew never granted Defendants permission to use or otherwise benefit in any manner from the Shufflin' Crew members' identities, images, names, photographs, likenesses, voices and performances in the Super Bowl Shuffle at any time including after [the original agreement]," the suit states.

The lawsuit further alleges that any original royalty agreement the Shufflin' Crew entered into awarding rights to the original record label would have expired in 1989, taking with it any rights to award royalties to outside parties.

The suit states the Shufflin' Crew found out about the 1987 dissolution of Red Label Records, the original label that produced and distributed the famous video, only after being informed by the defendants in 2013.

"Despite repeated requests, defendants have continually failed or refused to inform the Shufflin' Crew of the manufacturing, advertising, sales, licensing, merchandise and/or otherwise related to the Super Bowl Shuffle," the suit alleges.

The Shufflin' Crew is being represented by Walid J. Tamari and Christopher T. Considine of Tamari Law Group LLC. Chicago lawyer Karl Leinberger of Markoff Leinberger LLC represents Meyer and Renaissance.

The other Super Bowl Shuffle-related suit pending in federal court pits one of the video shoot's photographers against Fox Sports and the Tribune Co.

Don Levey, who shot photos for the cover of the album associated with the song, alleges the Tribune and Fox reproduced his photo without seeking permission.

U.S. District Judge Thomas M. Durkin in late March denied the Tribune’s motion to dismiss one of the counts leveled against it in the June 2013 suit and Fox recently filed a motion for summary judgment. A status hearing in the case is set for May 28.

Chicago attorneys Mark H. Barinholtz and Melinda H Schramm represent Levey's company, Leveyfilm Inc. in the suit. Stephanie J. Harris and A. Colin Wexler of Goldberg Kohn Ltd. represent the Tribune defendants and John David Fitzpatrick and Steven P. Mandell of Mandell Menkes LLC represent the Fox defendants.


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