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B.B. King Guitar Story Is Protectable

LAS VEGAS (CN) - Toyota cannot dismiss a copyright complaint from the author of a book that tells how he found and returned B.B. King's stolen guitar "Lucille," a federal judge ruled.

U.S. District Judge James Mahan on Tuesday denied Toyota Motor Sales USA's motion to dismiss the complaint regarding a commercial for Camry sedan. B.B. King appears in the commercial.

Eric Dahl in 2013 wrote the copyrighted book "B.B. King's Lucille and the Loves Before Her."

In it, he describes how he found a stolen Gibson ES-355 guitar in a Las Vegas pawn shop in 2009 and eventually tracked down its owner - B.B. King.

Dahl says his research "established that the Gibson Lucille ... was the original 'Prototype 1' 80th birthday Gibson Lucille which had been presented to B.B. King on the occasion of his 80th birthday in 2005" by its manufacturer, Gibson Guitar.

"King had used that guitar in his performances between 2005 and the summer of 2009 when the guitar was stolen from his home," Dahl says in the Oct. 21, 2014 complaint. He "agreed to return the guitar to Mr. King without compensation and a meeting was arranged in November of 2009 where he went to Mr. King's office and presented the recovered guitar to Mr. King personally."

King gave Dahl an autographed Gibson Lucille in appreciation.

Toyota used the story in a commercial for the 2015 Camry, though the guitar discoverer is not a man, but an attractive young woman.

In its motion to dismiss, Toyota argued: "It is a fundamental tenet of copyright law that copyright protection is only afforded to an artist's original, creative expression. Copyright does not protect facts, ideas, systems, methods of operation, and/or any expression that is not original to the author."

It added: "Fatal to his claim, Mr. Dahl conflates the concept of the expression of the story (protectable) with the basic idea of the story (not protectable). The concept of a musician who loses a musical instrument which is later found and returned is not unique to plaintiff nor can he claim copyright protection over all such stories. Nor does the fact that the musician in both stories is Mr. King change that result; as a matter of law, plaintiff must point to the expression of his own story in the ad, not some common facts, to make out a claim," Toyota argued.

Judge Mahan didn't buy it.

"Defendants misapply this rule of law to plaintiff's complaint. Although general themes and ideas are not copyrightable, parallels to more specific elements of a particular expression are protected," he wrote.

He found that Dahl "adequately alleges similarities between the plot, characters and sequence of events, among other factors, of the two works."

Mahan also denied Toyota's motion to dismiss Dahl's request for attorney's fees.

Dahl seeks any profits that can be attributed to the ad, statutory and general damages from defendants Toyota Motor Sales USA, advertising firm Saatchi & Saatchi North America and ad producer Smuggler, an injunction, attorney's fees and costs.

He is represented by Jeffrey Galliher and Ryan Dennett.

Toyota is represented by Mark Hutchison of Hutchison & Steffen.

B.B. King is not a party to the lawsuit.

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