This Week At The Ninth: Too $hort And Compilation Damages

• Jurisdiction: United States,Federal,California
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Author: Mr James R. Sigel
• Published date: 14 June 2023

This week, the Court addresses whether offensive music can create a hostile work environment and considers when individual photos in a database constitute a "compilation" for purposes of copyright infringement damages.

SHARP v. S&S ACTIVEWEAR, L.L.C.

The Court holds that playing sexually derogatory music in a workplace may constitute sexual harassment, even if all employees are exposed to the music and both men and women find the content offensive.

The panel: Judges McKeown, Bybee, and Bumatay, with Judge McKeown writing the opinion.

Key highlight: "It is beyond our purview to pass judgment on the appropriateness of music in the workplace writ large. Nor is it our objective to ascribe misogyny to any particular musical genre. Our resolution is more modest: we conclude that the district court erred in dismissing Sharp's sex-based discrimination claim as 'fatally flawed.'"

Background: Plaintiffs, eight former employees of the apparel manufacturing company S&S Activewear, had worked in a warehouse in which S&S placed commercial-strength speakers and permitted managers and employees to play music. Some employees played songs that plaintiffs'seven women and one man'allegedly found offensive, including "Blowjob Betty" by Too $hort and "Stan" by Eminem. Plaintiffs alleged that the music in the warehouse "denigrated women and used offensive terms," "glorified prostitution," and "described extreme violence," and that they found it nearly impossible to avoid the music. Plaintiffs claimed that S&S management received frequent complaints about the obscene music but refused to intervene.

Plaintiffs sued, alleging a Title VII sexual harassment claim. The district court granted S&S's motion to dismiss the claim with prejudice. It described plaintiffs' claim as "fatally flawed" because plaintiffs never alleged "that any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not." The court reasoned that conduct that offends both men and women does not constitute sex-based discrimination.

Result: The Ninth Circuit vacated the district court's decision, holding that audible sexually derogatory music can create a hostile work environment under Title VII. Because the district court had applied an erroneous legal standard, the Ninth Circuit remanded so that it could reevaluate the sufficiency of plaintiffs' complaint.

First, the Ninth Circuit held, plaintiffs did not need to allege that S&S targeted...