December 31, 2008
Red Distribution LLC v. Brater Myer Consulting Inc. dba Rawkus Records LLC dba Rawkus Records dba Brater Myer Consulting LLC; Brater Myer Consulting Inc. dba Rawkus Records LLC dba Rawkus Records; Rawkus Records LLC dba Rawkus Records dba Brater Myer Consulting Inc. dba Brater Myer Consulting LLC; Brian Brater; Jarret Myer. No. 08-117338; filed12/30/2008
Plaintiff's autobiography, including statements concerning his relationship with the band, appear on his website.
George Cummings Jr. v. EMI Music Inc.; Sony BMG Music Entertainment; Dr. Hook of Tennessee Inc.; Dennis Locorriere. No. 08-603856; filed 12/30/2008.
December 30, 2008
Micro-boutique record label denied preliminary injunction - claimed trademark infringement against classical music recording label over use of MEDICI mark. Analysis under each of the Polaroid factors.
Plaintiff Medici Classics Productions LLC (MCP) was created in 2003. After lapse of 2004 registration, its "Medici Classics" trademark was issued on Jan. 2, 2008. Since 2003 MCP sold 494 copies of five CD recordings, and 335 copies of two DVD performances, by its principal for $7,000. Defendant Medici Group produces CDs, DVDs and other media relative to a broad range of classical music by renowned artists. Its "Medici Arts" and "Medici Masters" marked recordings are distributed in the United States by Naxos of America Inc. The court denied MCP a preliminary injunction barring Naxos and Medici Group's alleged infringement of trademark, finding MCP's "Medici Classics" mark weak. Discussing the Polaroid factors, the court found that plaintiff showed little likelihood of confusion. MCP's marks were the weaker due to minimal promotion and sales. The possibility of confusion was further decreased by the sophistication of buyers who were capable of distinguishing between the parties' distinct logos.
[Summary by New York Law Journal]
December 29, 2008
Allan Kozinn, Hard Day's Night for Beatles Reissues, 12/26/08 New York Times (Music)
December 24, 2008
A new digital music service is getting lots of attention for proposing to help consumers sell their used MP3s in much the same way people once unloaded second-hand albums.
Bopaboo has generated splashy headlines recently for coming up with what on the surface seems like a good idea. Music fans have always exercised their first-sale rights, which under copyright law, allows them to sell their unwanted CDs, tapes, and albums without permission from the copyright owner. Why can't they do the same with digital music?
Article from the Wall Street Journal.
December 5, 2008
Summary: Northern District of Ohio Finds Record Companies Improperly Joined Doe Defendants in Peer-to-Peer File Sharing Case
Diverging in opinion from its Southern District counterpart, the U.S. District Court for the Northern District of Ohio held that the Doe defendants in a music industry file sharing case
were improperly joined. The court reasoned that despite arguments and holdings to the contrary, addressing the issue of joinder was both legally and practically appropriate prior to
the identification of the Doe defendants, and that efficiency concerns should not supersede the requirements of the Federal Rules of Civil Procedure. Thus, the court converted defendant Doe 9’s motion to dismiss for improper joinder into a motion for severance and severed all of
Doe defendants, save Doe #1, from the current action.
Bloomberg law report.
Post from Recording Industry vs. The People
Rule 12(f) - striking redundant pleadings
Rule 8(c)(2) - mistakenly labeling a defense a counterclaim
Rule 12(b)(6) - failure to state a claim
Rule 12(b)(1) - jurisdiction
Rule 41(a) - once answer filed, court has discretion to determine the proper terms of dismissal and whether it is with prejudice (concerning defendant's fear that if plaintiffs were to voluntarily dismiss their complaint, Usenet would be threatened with future litigation by plaintiffs)
The crux of the decision concerns counterclaims. The Court held that counterclaims are viable only when they present an independent case or controversy; counterclaims will be dismissed if they are merely a "mirror image" of the complaint. Therefore, because Usenet's DMCA safe-harbor counterclaims could not stand on their own without the complaint (i.e., the DMCA does not create an affirmative cause of action, but rather a defense), then they were dismissed. Moreover, the court noted, the counterclaims were not factually distinguishable because Usenet had not made any independent factual allegations. (The Court similarly dismissed Usenet's counterclaim seeking a declaratory judgment that its activities do not constitute inducement of copyright infringement, contributory infringement, or vicarious copyright infringement: this counterclaim, too, was a mirror image of plaintiff's copyright infringement claim.)
Lastly, the Court found that Usenet's argument that it would be precluded from recovering costs and attorneys' fees if its counterclaims are were dismissed was without merit. Pursuant to Section 505 of the Copyright Act, the Court would have discretion to award costs and attorneys' fees, irrespective of any counterclaims, if Plaintiff's claims were ultimately to fail.
November 28, 2008
Summons with notice for declaratory judgment declaring that the defendant cannot collect fees from the plaintiff's members for the time that the defendant was in violation of Article 11 by being an unlicensed theatrical employment agency.
November 24, 2008
This week, the FCC appealed a ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia, saying that court was wrong to throw out the case and a $550,000 fine against CBS Corp. in July. Will the US Supreme Court hear the case?
November 21, 2008
The victim of a shooting two years ago, Chad Blue, informed authorities of a distant friendship with the rapper that resulted in a gunshot after Wright chased him and let off multiple bullets to his thigh and groin while an entourage surrounded the scene.
"I heard one of the men tell Rico, 'Go ahead and shoot him,'" Blue previsouly told jurors. "When he raised his gun, I knew I had to run. But I knew if I ran a straight line, I was dead. So I started weaving, running between houses, trying to avoid the bullets."
Despite Blue's testimony, it was the lyric "Chad Blue knows how I shoot," which secured a prison term for the rapper.
[Article with comments.]
November 20, 2008
The decision overturned a lower court ruling that reusing even the shortest bit of a song infringed on copyright.
Today's order means that sampling of a song melody is prohibited, but a sample that is part of a completely new musical work bearing no resemblance to the original is not infringement.
[Rolling Stone Article.]
November 18, 2008
Although Universal sought certification of a controlling question of first impression on the issue of fair use and a copyright owner’s obligations with regard to the Digital Millennium Copyright
Act (DMCA) takedown notice procedures, the court found the question did not provide substantial grounds for difference of opinion, nor that a resolution of the question would materially advance the litigation at this stage.
[More from Bloomberg.]
The court, in an earlier decision held that the DMCA requires consideration of fair use prior to sending a takedown notice. Universal then filed the instant motion, seeking certification for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of the issue of “whether 17 U.S.C. § 512(c)(3)(v) requires a copyright owner to consider the fair use doctrine in formulating a good
faith belief that ‘use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.’” The court denied Universal’s motion for interlocutory appeal.
November 17, 2008
November 14, 2008
Michael Wright pka Wonder Mike; Guy O'Brien pka Master G, collectively pka The Sugarhill Gang v. Joseph Robinson, Jr.; Sugar Hill Music Publishing Ltd.; Gambi Music Inc.; Diamond Head Music Inc. dba Twenty Nine Black Music; Sylvia Robinson; Sylvia Inc., No. 08 CV-9830 (S.D.N.Y. complaint filed 11/13/2008 ).
November 7, 2008
Hall & Oates v. Warner/Chappell Music Inc., No. 114788-2008 (Sup.Ct., N.Y. Co. summons filed Nov. 3, 2008).
October 31, 2008
It seems like writing briefs and writing [hip-hop] lyrics would be completely different tasks; however, recently I realized that the two are more similar than one would think. The main premises are the same: (1) know your audience, (2) be persuasive, and (3) be able to support your claims.
October 28, 2008
Internet radio stations have never found a way to make substantial money from streaming music that listeners expect to hear free.
October 24, 2008
October 21, 2008
The Royalty Network Inc. v. Sony BMG, World Wrestling Entertainment, Inc. et al, No. 08 cv 8828 (S.D.N.Y. complaint filed 10/15/08)
The Leonore Gershwin 1987 Trust v.The Arthur Gershwin Testamentary Trust et al, No. 08-114000 (Sup.Ct., NY Co. filed October 17, 2008).
October 20, 2008
October 17, 2008
Plaintiffs sought to represent a nation-wide class of buyers of "digital music" on claims that defendant recording companies conspired to artificially fix prices on digital music (both CDs and Internet music). Defendants, the major record labels (EMI, SonyBMG, UMG, anmd Warner) allegedly fixed a high price for, and restrained availability of Internet music - by imposing the same price and use restrictions (i.e., DRM) on their sale thereof - which "buoyed" the price of CDs.
Plaintiffs' second consolidated amended complaint dismissed under the pleading standards of Bell Atlantic v. Twombly. Plaintiffs' first claim was for violation of section 1 of the Sherman Antitrust Act. The court concluded it was unreasonable to infer that defendants' adoption of DRM and parallel price arose from their membership in joint ventures that were created to distribute Internet Music. Other circumstantial evidence also did not justify an inference that defendants' parallel conduct resulted from an illegal agreement under the Sherman Act. For example, the court found there was no "antitrust record" based on investigation by government agencies, including the NY Attorney General. Nor would"mere participation in an industry trade association" yield an inference of improper inter-firm communication.
Similarly dismissed as predicated on the same allegations were state antitrust claims, consumer protection claims, and the unjust enrichment count.
October 15, 2008
October 10, 2008
"Yoko Ono and EMI Records have withdrawn all claims filed against Premise Media. The dismissal follows failed attempts by Yoko Ono in federal court and EMI Records in state court to enjoin Premise Media’s documentary, “Expelled: No Intelligence Allowed,” because it uses a 15-second clip of a John Lennon song."
October 3, 2008
Capitol Records Inc. v. MP3tunes LLC, No. 07-cv-9931, 10/3/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Sept. 29, 2008).
The case analyzed personal jurisdiction over both MP3tunes and Robertson under New York's long-arm statute (CPLR 302). Because MP3tunes is an interactive website, provides users with software, transfers of music files, and allows for the exchange of e-mails/postings, the court held that MP3tuns "transacts business in New York" under the long-arm statute. Further, the website's minimum contacts with New York meant that the assertion of personal jurisdiction would not offend "traditional notions of fair play and substantial justice."
Robertson, however, was not subject to the court's personal jurisdiction. There was no competent evidence that the CEO's only activities in New York (a single meeting and a speaking engagement at an industry forum) related to plaintiffs' claims. Nor was there competent evidence to show that Robertson exercised control over the corporations allegedly infringing activities in New York (important, because an individual defendant may also be subject to jurisdiction under New York's long-arm statute if a corporate defendant is acting as his agent).
A defendant "may be found", pursuant to 28 U.S.C. 1400(a), in any district where the defendant is subject to personal jurisdiction. Therefore, the motion to dismiss for improper venue was denied.
The Court examined nine transfer-factors and denied defendants' motion to transfer the action.
September 25, 2008
Aerosmith singer Steven Tyler sued unknown bloggers who allegedly impersonated him on the internet, writing about "intimate details" of his life. The suit accuses the bloggers of public disclosure of private facts, making false statements and misappropriation of likeness. It also seeks an injunction to have the defendants stop impersonating him online or elsewhere.
Record labels, music publishers, songwriters and online music services have reached an agreement on how to compensate music creators for online distribution of their content, they said.
Under the proposal, providers of such services will pay a royalty of 10.5 percent of revenue after other royalties are calculated.
From The Digital Media Association (DiMA):
The agreement, in the form of draft regulations submitted to the Copyright Royalty Judges, proposes for the first time mechanical royalty rates for
interactive streaming and limited downloads, including for subscription and
ad-supported services. The agreement proposes a flexible percentage of revenue
rate structure, with minimum payments in certain circumstances.
Limited download and interactive streaming services will generally pay a mechanical royalty of 10.5 percent of revenue, less any amounts owed for performance royalties. In certain instances, royalty-free promotional streaming is allowed. Outside the scope of the draft regulations, the parties confirmed that non-interactive, audio-only streaming services do not require reproduction or distribution licenses from copyright owners.
The agreement does not address royalty rates for physical product or permanent music downloads. The Copyright Royalty Judges are expectedto issue a ruling on those rates on or before October 2
September 24, 2008
RIAA's $222,000 verdict in Capitol v. Thomas set aside. Judge rejects 'making available'; attacks excessive damages. [Article]September 24, 2008, decision setting aside verdict
Synopsis from Ray Beckerman:
In Capitol v. Thomas, District Judge Michael J. Davis has set aside the jury's $222,000 verdict and ordered a new trial, ruling that his jury instruction -- which accepted the RIAA's "making available" theory -- was erroneous. He also rejected the 'offer to distribute' theory.
September 23, 2008
In UMG Recordings, Inc. et al. v. Lindor, No. 05 CV 1095 (DGT)(RML), (E.D.N.Y. motion dated Sept. 12, 2008), plaintiffs filed a memorandum of law in support of their motion for sanctions and to dismiss without prejudice. Their argument is:
Defendant And Her Counsel Should Be Sanctioned For Providing False And Misleading Information And For Unreasonably And Vexatiously Multiplying And Prolonging This Litigation; Defendant and her counsel should be sanctioned for discovery abuses under Rule 37 and the Court’s inherent authority; Defendant’s counsel should be sanctioned for engaging in vexatious litigation in violation of 28 U.S.C. § 1927 by making false statements, fighting Plaintiffs’ good faith efforts to uncover crucial evidence, and filing frivolous motions, all of which unnecessarily increased the costs of this litigation; Defendant, her counsel, or both should be ordered to pay monetary sanctions to Plaintiffs because their misconduct demeaned the integrity of the judicial process and unnecessarily prolonged and increased the cost of this lawsuit.
At page 19-20 of the brief, plaintiff's argue:
Finally, as this Court is aware, Defendant’s counsel has maintained an anti-recording
industry blog during the course of this case and has consistently posted virtually
every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions. See Galonsky, 1997 U.S. Dist. LEXIS 19570, at *18-19.
Backed by four major music labels, SanDisk on Monday announced a new physical
music format dubbed "SlotMusic" that's essentially an entire album on a MicroSD compact memory card. Wal-Mart and Best Buy are among the retailers that have already signed on to start selling the cards for the upcoming holiday season
September 15, 2008
September 10, 2008
Rolling Stone article.
What if that song could actually be your song? Now it can.
By connecting songwriters with fans through auctions, SongVest is transforming the music industry. We've created a new patent pending venue for the trading of artists'
intellectual and commercial property—their song rights and associated royalty
Songwriters, now you can sell your rights to the highest bidder. In
essence, it's payday. And because all transactions are reviewed and managed by
legal and financial experts to make sure they're entirely lawful and future
royalty payments are sent promptly, buyers can play their song all the way to
September 5, 2008
From their website:
"Every time a song you bought sells, you get a cut of the proceeds. Earlier buyers get more, so it pays to be a trendspotter."
Rolling Stone describes it as "stock market-like method to lure people toward its service."
How it works: Popcuts takes in a 10-20 percent cut of each purchase, then leaves it to the artist to decide their own percentage. From there, the rest of the earnings go towards the users’ accounts.
But currently their catalog has only 200 obscure artists and roughly 700 songs.
September 4, 2008
September 1, 2008
The basis of this order, and the sanction of granting default judgment to plaintiffs, was defendant file-sharer's repeated spoliation of evidence on his computer.
August 30, 2008
August 24, 2008
August 19, 2008
August 17, 2008
Jackson Browne v. John McCain et al, No. 2:08-cv-05334-RKG (C.D. Cal. complaint filed Aug. 14, 2008).
August 14, 2008
Case: "We consider here the ability of a copyright holder to dedicate certain work to free public use and yet enforce an open source copyright license to control the future distribution and modification of that work. " Later, "Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material."
On Open Source licenses, "Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. "
[Jacobson v. Katzer, No. 06-CV-1905 (Fed.Cir. Aug. 13, 2008)]
August 12, 2008
August 11, 2008
Sony/ATV Songs LLCv.Chickdowntown; Chick LLC; Amy Reed; Does 1-20, No. CV-7076 *SDNY filed 8/8/2008)
August 1, 2008
ABKCO Music Inc. v. Dwayne Michael Carter, Jr. pka Lil Wayne; Nicholas Mark Warwar pka StreetRunner; Jason Desrouleux; Cash Money Records Inc.; Universal Motown Republic Group; Universal Music Group Recordings Inc.; Young Money Publishing Inc.; Warner-Tamerlane Publishing Corp.; Warner/Chappell Music Inc.; EMI Music Publishing (filed 7/24/2008, No. CV-6573)
July 31, 2008
Update from the Tipster Wire: Yahoo Music is now offering to replace older, DRM-protected downloads that expire this fall.
July 21, 2008
Alleged copyright infringement arising from defendants' unauthorized use of plaintiff's composition, "Bridge Over Troubled Water", in connection with defendants' sale of clocks throughout the United States.
July 17, 2008
July 11, 2008
July 9, 2008
“The young musician making music in a bedroom studio has the same chance as the latest major label signing to use Last.fm to build an audience and get rewarded. The Artist Royalty Program is another revolutionary step towards helping musicians take control of their music — and, more importantly, make a living from it,” said Last.fm co-founder Martin Stiksel.
July 7, 2008
July 3, 2008
June 30, 2008
The Performance Rights Act, bill HR 4789, would remove a historical exemption that allows over-the-air radio stations to avoid paying royalties to record labels and artists for performances of sound recordings
June 24, 2008
The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. “When you got nothing, you
got nothing to lose.” Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).
(p. 36 of this .pdf).
June 19, 2008
(Article with link to papers filed.)
June 18, 2008
June 17, 2008
Alleged breach of a recording agreement: defendant failed to furnish accountings of the sale of the plaintiff's recording "True Love" as well as royalties owed from the album, on which the plaintiff performed with Bonnie Raitt and Eric Clapton.
June 16, 2008
The Associated Press, one of the nation’s largest news organizations, said that it will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.
...which raises the question: can The AP define what infringes its copyright? Standards may provide guidelines to bloggers, but isn't it the Copyright Act (and the federal courts' interpretation thereof) that defines the standards as to what and what is not "fair use"?
More info here from the Electronic Frontier Foundation.
June 13, 2008
Burt Stein, business manager of the lead singer of heavy metal band Motley Crue, has filed suit against the band in Nashville's federal court. He accuses the band and its management of trying to cut him out of the percentage of revenues he has shared in for many years
E. Thomas Wood, "Crue sued: Manager fires back in Motley feud", 6/16/08 Nashville Post.com
Claims: breach of contract, breach of covenant of good faith, and declaratory judgment.
[B Entertainment, Inc. v. Kovak, No. 3-08-cv-00592 (M.D. Tenn. complaint filed 6/13/08)]
The key to the decision is the First Sale Doctrine: because the label transferred title of the promo CDs to music industry insiders, those insiders were owners of the CDs at the time they sold them.
[UMG Recordings v. Augusto, No. 07-cv-03106-SJO (C.D. Cal. decided June 10, 2008)]
Anticipatory breach? Choice of law (NY v. CA)? It's all there. (Billboard article).
Details to follow...
June 11, 2008
So, we hadn't heard anything until a Tipster dropped us a line today:
"...just completed oral arguments on jurisdiction for the company and [MP3Tunes CEO Michael Robertson personally]."
CEO Michael Robertson's take on the issue of his personal liability is available on his website. ("The Record Label Wants My Minivan"; June 11, 2008).
Thanks Tipster. Please let us know what the court finds (e.g., send us a copy of the decision).
[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Priority Records LLC; Virgin Records America Inc.; Beechwood Music Corp.; Colgems-EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Golden Torch Music Corp.; EMI Longitude Music; EMI Virgin Music Inc.; EMI Virgin Songs Inc. v. MP3Tunes LLC; Michael Robertson. Filed S.D.N.Y. 11/9/2007; 07 CV-9931]
Tompkins v. Jackson, No. 102255-2006, 6/11/08 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided May 14, 2008):
This court adopts the view that unmarried cohabitants may lawfully contract concerning their financial and other matters relevant to their relationship, subject to the rules of contract law, except where sexual services constitute the only consideration for the agreement [cit. om.]. Therefore, the complaint alleges sufficient services rendered by the plaintiff, which are non-sexual in nature and separable from the parties' relationship, such that a breach of contract claim in this regard supports plaintiff's request for an interim stay.
The court also found that the imposition of a constructive trust concerning the parties house in Dix Hills (NY), a partition of same, an accounting, quantum meruit for services performed, and damages for unjust enrichment were sufficiently plead in Plaintiff's complaint to warrant preliminary injunctive relief.
June 6, 2008
For an interesting review of the distinctions between UK and US libel law, and especially New York State's response to "libel tourism" (New York enacted the Libel Terrorism Protection Act a/k/a Rachel's Law - see Laws of New York 2008, Ch. 66 amending CPLR sections 5304 and 302), see Jennifer McDermott and Chaya F. Weinberg-Brodt, "Growth of 'Libel Tourism' in England and U.S. Response", 06/04/08 N.Y.L.J.
June 5, 2008
June 4, 2008
What consideration will the Honorable Richard B. Lowe give to the federal order and decision? How does Judge Stein's decision affect the state proceeding?
June 3, 2008
June 1, 2008
Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?
Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".
So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?
Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.
Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.
But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.
[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]
May 29, 2008
Summary -- The shelves at Sony’s New York headquarters hold decades of music history, which the company hopes to use to attract new revenue.
Patry's take on the article here.
May 28, 2008
In reading the Answer, note that Defendants take the rare step of providing an introduction Rather than merely admit, deny, or d.k.i, Defendants offer a glimpse at their theory of the case.
Note also that Defendants assert twelve affirmative defenses. Although this case is pending in Federal Court in the Southern District of New York, in New York State courts (and especially the Second Department), one sentence affirmative defenses bereft of any factual support are subject to dismissal. Here, the affirmative defenses are one sentence and completely bereft of any factual support. [New York practioners: if you would like case citations, shoot an e-mail to OCTS.) Would Plaintiff's lawyers pursue such a motion, or would it be a waste of time, especially if Defendants can file an Amended Answer?
May 27, 2008
Kanye West, Common, Method Man and Redman were all sued for sampling late jazz artist Joe Farrell’s 1974 song “Upon This Rock” without permission.
The case was filed in SDNY. Complaint below:
[Firrantello v. West et al., No. 08-cv-4785 (S.D.N.Y. filed 5/22/08)]
His lawyer argued that the defamation-claim plaintiff did not properly serve DMX with the lawsuit papers and was unaware of the case against him.
Any readers from Maryland, please feel free to drop a line on the service requirements under state law. In New York, service of process is governed by CPLR Article 3. For example, for service upon an individual, see CPLR 308. Also, under New York law and objection that the summons and complaint were not properly served is waived if, having raised such objection in a pleading, the objecting party does not moved for judgment on that ground within sixty days after serving the pleading. CPLR 3211(e).
May 21, 2008
"A judge has promised a fast decision in a lawsuit brought by Yoko Ono to get the song "Imagine'' taken out of a movie challenging the concept of Darwinian evolution after a lawyer for the film's distributors warned the litigation could wreck the movie's political message."
Would an injunction "muzzle" the film producer's free speech? They argue that the film is asking if John Lennon was right, and concludes he was wrong. "Why would you ask somebody for permission to criticize their work?'' their attorney asked. "It's not likely it's going to be granted.''
Lennon's attorney responded: "fair use is not about destroying the other person's market. It's about carving very, very limited exceptions to a copyright proprietor's monopoly.''
So, readers - is it FAIR USE?
Notably, Judge Stein only required plaintiffs post a $20,000 bond to cover any losses suffered by the film's producers as a result of an injunction. What standard to judges apply to determine potential damages resulting from a wrongful preliminary injunction in setting the bond?
May 20, 2008
The company has support from all 4 major labels. (Given Napster's legal history with the labels, it's kind of ironic, right?)
Notably, customers cannot (yet) replace their previously purchased DRM-laden files with the new unprotected versions. Does the media-upgrade strategy correlate to other historical "upgrades": LP to tape, tape to CD, CD to...errr...minidisc? Will consumers purchase DRM-free copies of songs they previously downloaded with DRM?
May 15, 2008
Information about the National Recording Preservation Board is here.
OTCS once did a science report on the Voyager Spacecraft mission. And now, the "Sounds of Earth" gold record sent with the Voyager has made the registry! Though it is still uncertain whether aliens have record players...
May 14, 2008
Perhaps the future isn't so far off. As Rolling Stone notes:
Promoters postponed New Jersey’s Vineland Festival before even putting it on sale, and Coachella in late April was attended by 160,000 fans, according to reports, compared to 180,000 last year. Many of this summer’s major festivals have the same headliners — such as Jack Johnson at Coachella, Bonnaroo, All Points West and Outside Lands — and they may be losing their distinctiveness. “There’s always a saturation point for everything,” says Chuck Morris, the AEG Live promoter who is producing the July 19th-20th Mile High Music Festival in Denver, with Petty and DMB.
If and when you see such a clause, shoot us an e-mail.
May 13, 2008
"[T]he fee for a blanket license for unlimited performance of all music in the ASCAP repetory for all open periods to December 31, 2009 shall be determined by multiplying the total revenue of the licensed business unit ... less customary deductions for advertising sales commissions and traffic acquisition costs, by a music-use-adjustment fraction whose numerator is the total number of hours music is streamed to users by the licensee ... and whose denominator is the total number of hours of use of the licensee's website ... and applying to the resulting music-use-adjusted revenue a fee rate of 2.5%."
May 12, 2008
May 10, 2008
"By a 410-10 vote, the House approved the Prioritizing Resources and Organization for Intellectual Property, or Pro-IP, Act, which is backed by the entertainment industry and other major copyright holders...The bill would rewrite U.S. law to allow federal officials to seize property--including computers or other equipment used to commit intellectual-property crimes or obtained as a result of those proceeds--from people convicted of making unauthorized copies of music, movies, or live performances. In civil cases, federal agents would have to establish that there was a "substantial connection" between the property and the offense."
Do you support this?
May 6, 2008
Plaintiff sued for over $100 mil. based on six counts: breach of joint venture agreement, breach of fiduciary duty, joint venture accounting, unjust enrichment, promissory estoppel, and quantum meruit. Defendant moved to dismiss pursuant to CPLR 3211(a)(5) ("...the cause of action may not be maintained because of ... statute of frauds ..."), contending that New York's General Obligations Law prohibits a plaintiff from recovering a finder's fee or other compensation based on services rendered in connection with a corporate acquisition in the absence of a written agreement. (G.O.L. sec. 5-701(a)(10).)
The court disagreed, finding that the statute of frauds provision (id.) does not apply to an oral joint venture agreement "which involves two or more individuals pooling their respective efforts to create and/or operate a business venture as opposed to one person assisting or facilitating another to do so." (See Freedman v. Chemical Const. Corp., 43 N.Y.2d 260 (1977) and other cases cited herein.) Here, plaintiff was not a mere finder or intermediary -- "plaintiff functioned as more than just a broker assisting defendant in a limited and transitory manner".
Nonetheless, plaintiff's claims relating to the joint venture were dismissed because the alleged oral joint venture was too vague to support a joint venture agreement. Though plaintiff alleged that the parties had agreed he would receive a "fair and equitable" share of an amount of money from the alleged oral joint venture, the court found it too uncertain. (Citing Varney v. Ditmars, 217 N.Y. 223 (1916), and Freedman v. Pearlman, 271 A.D.2d 301 (1st Dep't 2000).) "The alleged contract in question is affected by too many facts that are in themselves indefinite and uncertain such that the intention of the parties is pure conjecture." Thus, after finding that the action was "ripe for dismissal" at the pleadings stage, the joint venture claims (and the promissory estoppel claim) were dismissed for vagueness. **
However, the unjust enrichment and quantum meruit claims survived. Based on a legal presumption of a promise to pay a "reasonable value", the court found that whether plaintiff can establish some value for any services actually rendered "must await discovery." Therefore, plaintiff had 20 days to file an answer to the unjust enrichment and quantum meruit claims.
** The court did not clarify under which provision of the CPLR it was granting dismissal of the joint venture and promissory estoppel claims. Although the portions of the decision relating to the statute of frauds clearly relate to defendant's motion under CPLR 3211(a)(5), it appears that dismissal of these counts was based on plaintiff's failure to state a cause of action. Can the court convert a 3211(a)(5) motion into a 3211(a)(7) motion sua sponte, assuming defendant's motion papers were brought only under 3211(a)(5)?
May 5, 2008
May 2, 2008
"Considering the facts set forth in Rule 26(b)(2)(C)(iii), this is a case in which the stakes are high, both sides have significant resources, and Bildson is apparently a central figure in the case."
The four additional hours "should be adequate time, particulary if the witness comes to realize that brisker, more responsive answers will undoubtedly reduce the tedium that he apparently feels and so visibly displays, with salutary effects on the impression he will make on the eventual factfind at trial."
I.e., take a hint.
Arista Records LLC v. Lime Group LLC, No. 06 Civ. 5936, 5/2/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. April 15, 2008).
Court interprets recording contract relating to exploitation "by any method now or hereafter known" -- license reaches digital media and distribution. [Patry].
May 1, 2008
Stanford Law School’s Fair Use Project to Represent Filmmakers in Lawsuit Brought by Yoko OnoPublication
STANFORD, Calif., May 1 , 2008—The Fair Use Project of Stanford Law School’s Center for Internet and Society today announced that it is signing on to defend Premise Media’s right to use a clip of John Lennon’s song “Imagine” in its documentary, "Expelled: No Intelligence Allowed,” for the purposes of commentary and criticism. The film, released in the United States on April 18, 2008, is about alleged discrimination against people who support alternative theories of evolution such as intelligent design. The song is played for roughly 15 seconds to illustrate and criticize the ideas suggested in it—that the world might be a better place without religion. Lennon’s widow Yoko Ono Lennon and sons Sean and Julian, along with EMI Blackwood Music, filed suit on April 22, 2008 claiming that Premise Media’s unauthorized use of “Imagine” violates copyright and trademark law. The suit, filed in the U.S. District Court for the Southern District of New York, alleges that Premise Media, C&S Production LP, Premise Media Distribution LP, and Rocky Mountain Pictures misappropriated the composition in violation of the Copyright Act, the Lanham Act, and New York state law. On the same date, EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law.
Premise Media contends it has the right to use the song under the fair use doctrine, which among other things permits the use of copyrighted material for the purpose of comment, criticism, and discussion. “The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the Fair Use Project. “These rights are under attack here, and we plan to defend them.” Falzone will serve as counsel on the case along with Stanford Law colleagues Julie A. Ahrens and Brandy Karl. The Stanford team will be joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP. The producers of “Expelled” spent two years interviewing scores of scientists, doctors, philosophers, and public leaders, including University of Minnesota biology professor P.Z. Myers, who does not support alternative theories of evolution. The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.” “We included the ‘Imagine’ clip not only to illuminate Ben Stein’s commentary but to criticize the ideas expressed in the song,” says Logan Craft, chairman and executive producer of Premise Media. “Yoko Ono and the other plaintiffs are trying to redefine the Constitution and the free speech protection it affords,” Craft continued. “Our movie is about freedom—the freedom to discuss alternative views of how life began on our planet, the freedom to ask reasonable questions about the adequacy of Darwin’s theory, and the freedom to challenge an entrenched establishment. Now we find that we also have to fight for our free speech rights.”
The plaintiffs in both cases have filed motions asking the court to issue a nationwide injunction against showing the film in its present form. These motions are likely to be heard in the next few weeks.
April 29, 2008
April 28, 2008
Why only a one week free-trial? The free-download period coincides with the beginning of radio-release. Isn't the first week likely to be the week when demand for the single is highest?
April 24, 2008
EMI Records Limited; Capitol Records LLC v. Premise Media Corporation LP; C & S Production LP dba Rampant Films; Premise Media Distribution LP; Rocky Mountain Pictures Inc.. Filed 4/22/2008; No. 08-601209.
Complaint asserts common law copyright infringement and unfair competition related to "Imagine." Plaintiff seeks to "curtail" defendants' use. (Does that mean enjoin?) Note that Plaintiffs in this matter are the record labels, rather than the Lennon heirs and Imagine-publisher.
If you have a copy of the complaint, please forward.
Paragraph 20 - noting the influence of Internet bloggers
Paragraph 23 - alleging that the defendants obtained synch licenses to use other songs in the film. Does this implicate bad-faith or willfulness? If Defendants' affirmative defense is Fair Use, there is split authority on whether bad-faith precludes a fair use defense. Judge Leval (and others) argue that a defendant's bad faith has no place in fair use analysis.
Paragraph 25 - end credits list Imagine, but do not state that permission was granted. Again, how does this implicate bad-faith or willfulness? Fair use?
Paragraph 36 - seeks permanent injunction and damages on copyright claim
THIRD CLAIM - is based on The Lanham Act sec. 43(a), infringement of unregistered mark. Does Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) foreclose this claim? Dastar holds that the section 43(a) does not apply to claims arising out of a failure to attribute or credit the origin of creative work; rather, such claims are cognizable under the Copyright Act. Are Plaintiffs making such a claim? See Contractual Obligation Productions LLC v. AMC Networks Inc., No. 04-cv-2867, 4/7/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. March 25, 2008). It appears that rather than alleging that Defendants are failing to credit the origin of Imagine, Plaintiffs' claim is a sponsorship claim.
Exhibits A & B - Noticeably absent is an SR registration. Imagine is a Pre-72 work; thus, Plaintiffs include publishers of the song, but not a record label. However, state common law copyright may protect Pre-72 recordings - why do Plaintiffs omit a common law claim from their complaint?