UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`No. 98-20736
`
`LEONARD BROWN; ET AL
`
` Plaintiffs,
`LEONARD BROWN; WALTER PRICE; PETE MAYES; JAMES NELSON; CLARENCE
`PARKER; LEE J. FRAZIER, also known as Skipper Lee Frazier; JOE
`HUGHES, also known as Joe “Guitar” Hughes; RAYFIELD JACKSON, also
`known as Houston Guitar Slim; FREDDIE COLLINS, also known as Big
`Roger Collins; ALFRED R. BETTIS; FALIETA GREEN; THOMAS DARDAR,
`formerly known as Tommy Dardar, presently known as; DEBRA L.
`NICKERSON; WELDON BONNER, presently known as Juke Boy Bonner;
`LIZETTE COBB; ARNETT COBB; KINNEY ABAIR
`Plaintiffs-Appellees,
`
`v.
`ROY C. AMES, Etc.; ET AL.
`Defendants
`ROY C. AMES, doing business as Clarity Music & Home Cooking
`Records
`
`Defendant-Appellant
`COLLECTIBLES INC., doing business as Collectibles Records
`Movant-Appellant.
`
`Appeals from the United States District Court for the
`Southern District of Texas
`
`February 7, 2000
`Before JONES and DENNIS, Circuit Judges, and PRADO*, District Judge.
`
` *
`District Judge for the Western District of Texas, sitting by
`designation.
`
`

`
`EDITH H. JONES, Circuit Judge:
`Appellants Collectibles and Ames principally appeal the
`district court’s determination that appellees’ state law claims for
`violation of their rights of publicity are not preempted by the
`Copyright Act. The misappropriation consisted of appellants’
`unauthorized use of appellees’ names and likenesses to market
`appellees’ musical performances on CD’s and audio cassettes for
`which appellants also lacked copyrights. Because a person’s name
`and likeness in themselves are not copyrightable, and because the
`state law tort for misappropriation does not conflict with federal
`copyright law, appellees’ claims are not preempted. As the other
`issues raised on appeal lack merit, the judgment is affirmed.
`I. FACTUAL & PROCEDURAL HISTORY
`Collectibles is a record label that distributes and sells
`music recordings, especially repackaged vintage recordings. Ames
`is a music producer specializing in Texas blues. Appellees are
`individual blues musicians, songwriters, music producers or heirs
`of such.
`
`Around 1990, Ames, d/b/a Home Cooking Records, licensed
`to Collectibles for commercial exploitation master recordings that
`included performances by appellees. The written license agreements
`also purported to give Collectibles the right to use the names,
`photographs, likenesses and biographical material of all those whose
`performances were on the master recordings. Ames represented and
`
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`
`warranted to Collectibles that Ames was entitled to convey these
`rights. Using the master recordings, Collectibles manufactured and
`distributed cassettes and CD’s, as well as music catalogs, with the
`names and sometimes the likenesses of the performers on or in them.
`In addition, Ames, but not Collectibles, sold posters or videotapes
`with the names or likenesses of the plaintiffs.
`In 1994, appellees sued Ames, Collectibles and Jerry and
`Nina Greene, the owners of Collectibles. Before trial, the district
`court dismissed appellees’ negligence and conversion claims as
`preempted by the Copyright Act, and dismissed without prejudice the
`copyright claims of those appellees who had not timely obtained
`registration certificates. Appellees’ actions for copyright
`infringement, violations of the Lanham Act and for misappropriation
`of name or likeness under Texas state law proceeded to a jury trial.
`At the close of appellees’ case, the Court granted judgment as
`matter of law for defendants Jerry and Nina Greene, and the jury
`found in favor of all defendants on the Lanham Act claims. These
`rulings have not been appealed.
`The jury also found that the defendants had
`misappropriated the names and likenesses of the appellees and had
`infringed (in the case of Collectibles, innocently) copyrights held
`by some of the appellees. Finally, the jury found that Weldon
`Bonner had not executed a Recording Agreement with Roy Ames. The
`jury awarded the appellees misappropriation damages of $127,000--
`$100,000 from Ames and $27,000 from Collectibles. In its final
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`judgment of August 3, 1998, the court held Collectibles liable for
`$1,800 for copyright infringement and for $27,000 for
`misappropriation and Ames liable for $22,500 for copyright
`infringement and for $100,000 for misappropriation.
`Collectibles and Ames have appealed on several grounds.
`First, they assert that the Copyright Act preempts the
`misappropriation claims. Second, they assert that the district
`court should have enforced the allegedly notarized January 1975
`Recording Agreement between Ames and Weldon Bonner, notwithstanding
`the jury verdict that Bonner did not sign it, and that the district
`court incorrectly instructed the jury on the burden of proof.
`Third, they claim that the district court improperly awarded a
`copyright to Leonard Brown for “Ain’t Got Much” because his wife
`wrote the song and he lacked a written assignment from her.
`Finally, Collectibles, but not Ames, asserts that the plaintiffs did
`not present legally sufficient evidence to support the
`misappropriation damages award.
`II. DISCUSSION
`
`A. Preemption
`This Court reviews a district court’s conclusions of law
`de novo. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 537
`(5th Cir. 1998).
`The Copyright Act provides that:
`On or after January 1, 1978, all legal and equitable rights
`that are equivalent to any of the exclusive rights within the
`
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`general scope of copyright as specified by section 106 in
`works of authorship that are fixed in a tangible medium of
`expression and come within the subject matter of copyright as
`specified by sections 102 and 103, whether created before or
`after that date and whether published or unpublished, are
`governed exclusively by this title. . . .
`17 U.S.C. §301(a). Section 301 requires the fulfillment of two
`conditions. First, the content of the protected right must fall in
`the subject matter of copyright. Second, the nature of the rights
`granted under state law must be equivalent to any of the exclusive
`rights in the general scope of a federal copyright. See Daboub v.
`Gibbons, 42 F.3d 285, 289 (5th Cir. 1995); see also 1 Melville B.
`Nimmer & David Nimmer, Nimmer on Copyright §1.01[B] (1999).
`In Texas, the tort of misappropriation provides protection
`from the unauthorized appropriation of one’s name, image or
`likeness. See Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir.
`1987). It is best understood as a species of the right of publicity
`or of privacy. See id. To prevail, a plaintiff must prove that (1)
`the defendant misappropriated the plaintiff’s name or likeness for
`the value associated with it and not in an incidental manner or for
`a newsworthy purpose; (2) the plaintiff can be identified from the
`publication; and (3) the defendant derived some advantage or
`benefit. See Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir.
`1994).
`
`Appellants argue strenuously that appellees have not
`presented an independent action for misappropriation. Because
`appellees’ names and/or likenesses were used to identify their
`
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`
`musical works in Collectibles’ CD’s, tapes and catalogs, appellants
`assert that the core of the misappropriation and copyright
`infringement claims is the same, compelling preemption under section
`301 of the misappropriation claims.
`Appellants’ argument ignores, however, that the content
`of the right protected by the misappropriation tort does not fall
`into the subject matter of copyright, as section 301 requires. As
`the district court correctly recognized, the tort for
`misappropriation of name or likeness protects “the interest of the
`individual in the exclusive use of his own identity, in so far as
`it is represented by his name or likeness, and in so far as the use
`may be of benefit to him or to others.” Restatement (Second) of
`Torts §652C (1977). In other words, the tort of misappropriation
`of name or likeness protects a person’s persona. A persona does not
`fall within the subject matter of copyright – it does not consist
`of “a ‘writing’ of an ‘author’ within the meaning of the Copyright
`Clause of the Constitution.” Nimmer, supra, §1.01[B][1][c]; Jarvis
`v. A&M Records, 827 F.Supp. 282, 297 (D.N.J. 1993); Bi-Rite
`Enterprises, Inc. v. Button Master, 555 F.Supp. 1188, 1201 (S.D.N.Y.
`1983); Apigram Publishing Co. v. Factors, Etc., Inc., 1980 WL 2047
`(N.D.Ohio July 30, 1980)(available on WESTLAW); Lugosi v. Universal
`Pictures, 25 Cal.3d 813, 849 (1979)(Bird, C.J., dissenting).
`Furthermore, contrary to appellants’ implications, appellees’ names
`and likenesses do not become copyrightable simply because they are
`
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`
`used to identify the source of a copyrighted work. Therefore, their
`misappropriation claims do not fit the terms of §301 preemption.
`Given the fact that a name or likeness is not
`copyrightable, appellants’ reliance on Daboub is unavailing. In
`Daboub, the plaintiffs alleged that ZZ Top had both infringed their
`copyright in and misappropriated one of their songs, and this Court
`held that section 301 of the Copyright Act preempted the state law
`misappropriation claim. See Daboub, 42 F.3d at 287, 290. The
`crucial difference between the two cases is that in Daboub the basis
`of the misappropriation claim, as well as the copyright infringement
`claim, was the song itself, bringing it within section 301's ambit,
`whereas here the basis of the misappropriation claim was defendants’
`use of plaintiffs’ names and/or likenesses.
`The appellants also cite Fleet v. CBS, Inc., 58
`Cal.Rptr.2d 645 (Cal. Ct. App. 1996), which, although more similar,
`shares the same factual difference. In Fleet, plaintiffs were
`actors in a copyrighted film who alleged that the exploitation of
`the copyrighted work itself infringed their state right of
`publicity. See id. at 647. They complained not only about the
`showing of the film, but also about the use of pictures from the
`film for advertising. See id. Because the individual performances
`in the film were copyrightable, the court held their claims
`preempted by federal copyright law. See id. at 650. Thus, Fleet,
`like Daboub, involved a claim of misappropriation of something --
`in Fleet, dramatic performances; in Daboub, songs -- within the
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`
`subject matter of copyright. This case, in contrast, involves a
`claim of misappropriation of name and/or likeness, which is not
`within the subject matter of copyright.
`This Court finds the Ninth Circuit’s opinions in Midler
`v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), and Waits v. Frito-
`Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), more persuasive than the
`case law urged by appellants. These cases, which the district court
`relied upon, involved the misappropriation of the vocal styles of
`Bette Midler and Tom Waits. The Ninth Circuit held that because
`vocal style is not “fixed,” it is not copyrightable, consequently,
`section 301 of the Copyright Act did not preempt a claim of
`misappropriation of the singer’s vocal style. See Waits, 978 F.2d
`at 1100; Midler, 849 F.2d at 462. In Daboub’s language, the content
`of the protected right (in these cases, the singers’ vocal styles)
`did not fall in the subject matter of copyright. Midler foreshadows
`the result in this case, reasoning that “[a] voice is as distinctive
`and personal as a face.” 849 F.2d at 463.2
`One arguably analogous case has held to the contrary. In
`Baltimore Orioles v. Major League Baseball Players Ass’n, 805 F.2d
`663 (7th Cir. 1986), the Seventh Circuit held that the Copyright Act
`preempted baseball players’ rights of publicity in their
`
` 2
`The legislative history supports this conclusion, stating: “The
`evolving common law rights of ‘privacy,’ ‘publicity,’ and trade secrets ... would
`remain unaffected as long as the causes of action contain elements, such as an
`invasion of personal rights or a breach of trust or confidentiality, that are
`different in kind from copyright infringement.” H.R. Rep. 1476, 94th Cong., 2d
`Sess. 132 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748.
`8
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`

`
`performances. The court’s conclusion turned on its controversial
`decision that performances in a baseball game were within the
`subject matter of copyright because the videotape of the game fixed
`the players’ performances in tangible form. See id. at 674-76.3
`Baltimore Orioles, however, has been heavily criticized for holding
`that a baseball game is a protectible work of authorship simply
`because the performance was recorded on videotape that was itself
`copyrightable. See, e.g., Nimmer, supra, §§1.01[B][1][c] and
`2.09[F]; David E. Shipley, Three Strikes and They’re Out at the Old
`Ball Game: Preemption of Performers’ Rights of Publicity under the
`Copyright Act of 1976, 20 Ariz. St. L.J. 369, 384-88 (1988); Shelley
`Ross Saxer, Baltimore Orioles, Inc. v. Major League Baseball Players
`Association: The Right of Publicity in Game Performances and Federal
`Copyright Preemption, 36 U.C.L.A. L. Rev. 861, 870 (1989). In any
`event, Baltimore Orioles is distinguishable from this case because
`the right of publicity claimed by the baseball players was
`essentially a right to prevent rebroadcast of games whose broadcast
`rights were already owned by the clubs. Viewed in this way, the
`
` 3
`Baltimore Orioles appears to concede that some form of the right of
`publicity is not preempted by the Copyright Act, e.g., where a company, without
`the player’s consent, used his name to advertise its product or placed the
`player’s photograph on a trading card. 805 F.2d at 676, n.24. The court
`disagreed, however, with cases on which we have relied, and with their premise
`that a public figure’s persona is not copyrightable because it cannot be fixed
`in a tangible medium of expression. 805 F.2d at 678 n.26. The court states
`that, “Because a performance is fixed in tangible form when it is recorded, a
`right of publicity in a performance that has been reduced to tangible form is
`subject to preemption.” Id. If the point of this remark is not inconsistent
`with the previous footnote, and if we take it as drawing a distinction between
`the appropriation of a persona and unauthorized copying of one’s photograph, we
`do not disagree. The point isn’t relevant to the instant case.
`9
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`
`case is the same as Fleet, Inc. v. CBS, supra. The case before us
`offers no such complication, as the appellee performers did not give
`permission to the appellants to market their recordings or
`photographs. We decline appellants’ invitation to find name or
`likeness copyrightable simply because they are placed on CD’s and
`tapes or in catalogs that have copyrightable subject matter recorded
`on them.
`
`The fact that section 301 does not apply does not end the
`inquiry, however. Although section 301 preemption is not
`appropriate, conflict preemption might be. The Supremacy Clause
`dictates that a state law that obstructs the accomplishment of the
`full purposes and objectives of Congress is preempted. See Hines
`v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581
`(1941).
`The major purpose of the Copyright Act is, as the
`
`Constitution states, “to promote the progress of Science and useful
`arts.” U.S. Const., art. I, § 8, cl. 8. The legislative history
`of the Copyright Act describes several other objectives: 1) to
`promote national uniformity and avoid the difficulties of
`determining and enforcing rights under different state laws; 2) to
`have copyright protection last for a limited time period, so that
`scholars and the public can benefit from the dissemination of
`copyrighted materials; and 3) to improve our international dealings
`in copyrighted materials. See House Report at 132, reprinted in
`
`10
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`
`1976 U.S.C.C.A.N. at 5745-46; see also Goldstein v. California, 412
`U.S. 546, 554-56, 93 S.Ct. 2303, 2308-10, 37 L.Ed.2d 163 (1973).
`Although appellants argue vigorously that not preempting
`appellees’ misappropriation claims would undermine the copyright
`system, several considerations belie this claim. First, the right
`of publicity that the misappropriation tort protects promotes the
`major objective of the Copyright Act – to support and encourage
`artistic and scientific endeavors.4 Second, the record here
`indicates that industry practice may be to transfer rights in a
`performer’s name or likeness when the copyright is transferred.5 If
`that is the case, right of publicity claims will rarely interfere
`with a copyright holder’s use of the creator’s name or likeness in
`connection with the copyright. Third, common law on the right of
`publicity appears ordinarily to permit an authorized publisher or
`distributor to use name or likeness to identify truthfully the
`author or creator of the goods.6 See Zim v. Western Publishing Co.,
`573 F.2d 1318, 1327 (5th Cir. 1978)(holding that authorization to
`publish author’s work provided implicit authorization to use
`author’s name to identify work); Neyland v. Home Pattern Co., 65
`
` 4
`The Supreme Court upheld a right of publicity action in Zacchini v.
`Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965
`(1977). There, the Court said: “the protection [afforded by state right of
`publicity laws] provides an economic incentive for him to make the investment
`required to produce a performance of interest to the public. The same
`consideration underlies the patent and copyright laws.” Id. at 576.
` 5
`In fact, Roy Ames purported to transfer these rights as well as the
`copyright licenses.
` 6
`Appellants did not make this argument in this litigation.
`11
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`
`F.2d 363, 364 (2d Cir. 1933)(holding that an implied license to use
`the name to sell goods arises if the goods have been sold or
`disposed of); Kamakazi Music Corp. v. Robbins Music Corp., 534
`F.Supp. 69, 77 (S.D.N.Y. 1982)(holding that the right to use a
`composer’s name or likeness accompanies the grant of the right to
`use the underlying compositions); Brinkley v. Casablancas, 80 A.D.2d
`428, 438 N.Y.S.2d 1004 (S.Ct. 1981)(holding that an unauthorized
`distribution of a model’s name or likeness was actionable);
`Restatement (Third) of Unfair Competition § 47; 2 J. Thomas
`McCarthy, The Rights of Publicity or Privacy §7.4 (1999).
`Only if states allowed similar claims against authorized
`publishers or distributors of a work (whether through copyright or
`the public domain) would the purposes and objectives of the
`Copyright Act be adversely affected.7 Such suits would interfere to
`some extent with the uniformity of the copyright system and the
`exploitation of works in the public domain. Currently, however, no
`state seems to have such a law, and the general rule is as described
`above. See McCarthy, supra, § 7.4. Thus, because the tort would
`currently not be sustainable against valid copyright holders,
`allowing the claim in this context does not impede the transfer of
`copyrights or the uniformity of the copyright system.
`
` 7
`Appellants did not use the common law described above as a defense
`to the misappropriation charges. Thus, despite the fact that such a defense
`would seem to be applicable to some of the misappropriation claims, we cannot
`decide the case on those grounds or to allow it to influence our preemption
`analysis.
`
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`
`Supreme Court precedent suggesting that courts should
`steer a middle ground in considering Copyright Act preemption cases
`supports our conclusion that appellees’ misappropriation claims are
`not preempted. The leading Supreme Court case on preemption in the
`intellectual property field, Bonito Boats, Inc. v. Thunder Craft
`Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989),
`found that a state statute providing patent-like protection for
`ideas deemed unprotected under federal patent law was preempted, but
`warned that “the States remain free to promote originality and
`creativity in their own domains.” Id. at 165. The Court went on
`to state that: “the case for federal pre-emption is particularly
`weak where Congress has indicated its awareness of the operation of
`state law in a field of federal interest, and has nonetheless
`decided to ‘stand by both concepts and to tolerate whatever tension
`there [is] between them.’” Id. at 166-67 (citing Silkwood v. Kerr-
`McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 625, 78 L.Ed.2d 443
`(1984)). As noted in the legislative history of section 301,
`Congress was aware of the operation of state law on the rights of
`privacy and publicity, and indicated its intention that such state
`law causes of action remain.8 See House Report at 132, reprinted in
`1976 U.S.C.C.A.N. at 5748.
`
` 8
`Furthermore, the several cases prior to Bonito Boats that dealt with
`preemption in the intellectual property field found that state laws on trade
`secrets and recording piracy were not preempted by the Copyright Act. See
`Kewanee Oil. Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315
`(1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163
`(1973).
`
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`
`Since appellees’ misappropriation claims neither fall
`within the subject matter of copyright nor conflict with the
`purposes and objectives of the Copyright Act, the claims were not
`preempted.9
`
`B.
`
`Damages
`The jury found that Collectibles owed plaintiffs, in the
`aggregate, $27,000 for the misappropriation of their names and/or
`likenesses. Collectibles argues that the plaintiffs did not present
`legally sufficient evidence on the commercial damage suffered as a
`result of Collectibles’ use of their names and/or likenesses. We
`disagree. An assessment of damages is not reversed unless it is
`clearly erroneous, and review and approval of the verdict by the
`trial judge, such as occurred here, makes appellate review even more
`deferential. See Ham Marine, Inc. v. Dresser Industries, Inc., 72
`F.3d 454, 462 (5th Cir. 1995).
`Under Texas law, “[o]ne who appropriates to his own use
`or benefit the name or likeness of another is subject to liability
`to the other for invasion of his privacy.” Restatement (Second) of
`Torts, §652C (1977); see also Benavidez v. Anheuser Busch, Inc., 873
`F.2d 102, 104 (5th Cir. 1989)(recognizing §652C of the Restatement
`of Torts as descriptive of Texas law); Kimbrough v. Coca-Cola/USA,
`521 S.W.2d 719 (Tex.Civ.App. – Eastland 1975, writ ref’d n.r.e.)
`(recognizing cause of action for misappropriation under Texas law).
`
` 9
`As noted above, our conclusion might be different if Texas were to
`allow such suits against authorized publishers or distributors of a work.
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`
`“‘To prove a cause of action for misappropriation, a plaintiff must
`show that his or her personal identity has been appropriated by the
`defendant for some advantage, usually of a commercial nature, to the
`defendant.’” Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir.
`1987) (quoting National Bank of Commerce v. Shaklee Corp., 503
`F.Supp. 533, 540 (W.D.Tex.1980)). Furthermore, plaintiffs in
`misappropriation of name or likeness actions are not required to
`show that the defendant made money from the commercial use of the
`name or likeness. See Henley v. Dillard Dep’t Stores, 46 F.Supp.2d
`587, 597 (N.D.Tex. 1999).
`In a misappropriation of name or likeness action, a
`plaintiff may recover general damages plus any proven special
`damages. See Shaklee, 503 F.Supp. at 545. “General damages are
`those which naturally, proximately, and necessarily result from the
`improper communications.” Moore, 828 F.2d at 277. Collectibles
`argues that the evidence is too speculative to support the damages
`verdict. While it is true that recovery is not allowed for damages
`that are speculative or conjectural, “mathematical precision is not
`required to establish the extent or amount of one’s damage.” Moore,
`828 F.2d at 649. Damages must be “ascertainable by reference to
`some fairly definite standard, established experience, or direct
`inference from known facts,” but the plaintiff does not have to give
`an actual dollar value to his injury. Id. In fact, one treatise
`states: “the award of such damages [general damages in an invasion
`of privacy case] is within the province of the jury and should not
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`
`be disturbed unless there is a clear showing of excessiveness or
`impropriety on the part of the jury.” J. Hadley Edgar, Jr. & James
`B. Sales, Texas Torts & Remedies §53.08[1][a] (1999).
`In this case, the jury did not clearly err in its damages
`verdict. The damages awarded fit the Moore criteria: the jury could
`reasonably have based its estimate of the damages suffered by
`plaintiffs and even the value of appellees’ names and/or likenesses
`on inferences from the amounts appellees were paid to perform at
`blues festivals.
`
`C.
`
`The Notarized Contract.
`The jury found that Weldon Bonner did not execute a
`January 1, 1975 Recording Agreement with Roy Ames. Appellant
`Collectibles argues that the evidence was insufficient to overcome
`the presumption of authenticity that attaches to a notarized
`contract under Texas law.10 Appellant Ames asserts that the
`district court erroneously instructed the jury that the burden of
`proof was preponderance of the evidence when it should have been
`clear and convincing proof.
`A party must object to a jury charge before the jury
`begins its deliberations in order to preserve its right to appeal
`that jury charge, unless the error is so fundamental as to be a
`
` 10
`A jury verdict will be upheld unless, upon reviewing the entire
`record, the facts and inferences point so strongly and overwhelmingly in favor
`of one party that the court believes reasonable men could not arrive at a
`contrary verdict. See Mosley v. Excel Corp., 109 F.3d 1006, 1008-09 (5th Cir.
`1997).
`
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`
`miscarriage of justice. See Ford v. United Gas Corp., 254 F.2d 817,
`818 (5th Cir. 1958); Farrar v. Cain, 756 F.2d 1148, 1150 (5th Cir.
`1985). Since Ames did not object to the jury charge on the burden
`of proof and the alleged error is not so fundamental as to be a
`miscarriage of justice, he has waived any appeal on that basis.
`Collectibles, however, has not waived its appeal as to
`the sufficiency of the evidence supporting the jury verdict that the
`notarized contract was invalid. It objected, on the same grounds
`as it argues here, to the trial court’s interrogatory to the jury
`as to whether Ames and Bonner executed said contract.
`Texas law requires “clear and unmistakable proof that
`either the grantor did not appear before the notary or that the
`notary practiced some fraud or imposition upon the grantor ... to
`overcome the validity of a certificate of acknowledgment.” Bell v.
`Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330 (Tex. Ct. App.
`1987); see also Stout v. Oliviera, 153 S.W.2d 590 (Tex. Civ. App.
`1941).
`
` Bonner’s daughter testified that the signature on the
`Recording Agreement was not her father’s. Several documents in
`evidence showed Bonner’s signature and permitted the jury to draw
`their own conclusions as to the authenticity of the challenged
`signature. The jury could reasonably have concluded from the
`evidence that Bonner did not appear before the notary and his
`signature was forged, thus overcoming the presumption of
`authenticity that attaches to a notarized contract. Because this
`17
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`
`inference was reasonable, we affirm the jury’s verdict that the
`Recording Agreement between Bonner and Ames was invalid.
`
`D. Leonard Brown’s Copyright in “Ain’t Got Much”
`Appellants claim that because Leonard Brown’s wife wrote
`the song “Ain’t Got Much” and he failed to produce a written
`copyright assignment from her at trial, the district court erred in
`granting him a copyright in the song.
`Appellants never raised this particular objection to
`Brown’s copyright in “Ain’t Got Much” at trial. To avoid being
`waived, an argument “must be raised to such a degree that the trial
`court may rule on it.” In re Fairchild Aircraft Corp., 6 F.3d 1119,
`1128 (5th Cir. 1993); see also Harris County, Tex. v. CarMax Auto
`Superstores, Inc., 177 F.3d 306 (5th Cir. 1999); FDIC v. Mijalis,
`15 F.3d 1314, 1327 (5th Cir. 1994). In its April 2, 1997 motion for
`judgment, Collectibles (but not Ames) challenged Brown’s copyright
`on the grounds that his misrepresentation to the copyright office
`of authorship of “Ain’t Got Much” invalidated his copyright
`application for the entire collection it appeared in. Collectibles
`did not, however, contend that Brown’s copyright in the song was
`invalid because he had not produced a written copyright assignment
`from his wife. In fact, at no time did Collectibles or Ames raise
`that particular objection at trial. Consequently, the district
`court never ruled on it. As a result, appellants have waived the
`right to appeal on this ground.
`
`18
`
`

`
`III. CONCLUSION
`The district court was correct in holding that plaintiffs’
`misappropriation claims were not preempted, that sufficient evidence
`supported the damages verdict, and that sufficient evidence
`supported the jury’s determination that the Recording Agreement
`between Weldon Bonner and Roy Ames was invalid. In addition,
`appellants waived their right to argue that, because Leonard Brown
`did not produce a written assignment from his wife, the district
`court erred in awarding him a copyright in “Ain’t Got Much.”
`AFFIRMED.
`
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