January 18, 2008

Capitol v. Multiply Inc. UPDATE

A stipulation, dated 1/16/08 and filed 1/17/08, in the Capitol Records v. Multiply Inc. suit pending in the federal District Court, Southern District of New York (Judge Stein), granted defendant Multiply Inc. until February 15, 2008 to answer the complaint. Though an initial pretrial conference remains scheduled for 2/8/08, it is unlikely the public (and OTCS's loyal readers) will have access to any further information on this matter until that time -- unless, a settlement is reached and disclosed, the latter of which is unlikely.

...so stay tuned...

Of note, an electronic copy of the complaint with attached exhibits was too large a file to electronically file, and Judge Stein granted (by endorsed letter dated 1/2/08) Plaintiffs permission to file the exhibits as paper documents only. That is one large complaint!

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Virgin Records America Inc.; Colgems EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Grove Park Music Inc.; EMI Longitude Music; EMI Robbins Catalog Inc.; EMI U Catalog Inc.; EMI Virgin Music Inc.; EMI Virgin Song Inc.; EMI Waterford Music Inc. v. Multiply Inc.; filed 12/18/2007; case CV-11357]

Zappa Update

As previously reported by OTCS, the sole trustee of Frank Zappa's family trust (and Zappa's wife) filed suit in SDNY against Rykodisc for copyright and trademark infringement. According to the complaint:

Upon Zappa's death in 1993, the Trust acquired all rights and interest in Zappa's sound recordings. The Trust and Rykodisc entered into an agreement in 1994 granting the label certain un-released recordings. After a certain period, Rykodisc had an option to exploit those recordings retained by the Trust but submitted to the label for exploitation. (If Rykodisc did not exercise its option, the Trust could seek 3rd party exploitation, but Rykodisc would have a matching right.) Rykodisc was also granted the rights to exploit album artwork and images for the sound recordings it acquired, but it was restricted from altering the artwork.

However, according to Plaintiff, Rykodisc breached the agreement by asserting it had acquired more rights than it did, licensing various recordings for digital and vinyl distribution -- thereby diminishing the "integrity" (sound quality) of the recordings--, releasing masters it did not have the rights to, issuing misleading advertisements with regards to various compilations (e.g., "Best of..."), altering the artwork, and failing to pay mechanical royalties. Thus, in addition to breach of contract, Plaintiff brought numerous copyright and trademark claims, and a claim for accounting.

On each of its willful copyright infringement claims, the Trust seeks maximum statutory damages ($150,000).

[Zappa v. Rykodisc, Inc.; case number 08-cv-00396-WHP; filed 1/15/08]

Wine About It

...More cookie-cutter copyright infringement cases filed against "place[s] of business for public entertainment..." for failure to obtain ASCAP public performance licenses. This time, the defendants include a winery in the Buckeye State (i.e., Ohio).

[Freejunket Music et al v. Ferrante Wine Farm, Inc. ( filed 1.17.2008; case number 1:08-cv-00155), and Stygian Songs et al v. Gadd's Olympic Inn, Inc. (filed 1/17/08; case number 4:08-cv00156) both N.D. Ohio, Eastern District]

January 17, 2008

RIAA Hires a New Baker

The RIAA hired a former FBI special agent to lead its battle against on-line piracy in the Western US.


OTCS looks forward to covering the beat on more cookie-cutter lawsuits filed against John Doe IP addresses!

blink-182 - Camera Shy

The Washington Post reports:
Former Blink-182 drummer Travis Barker sued the Rockstar energy drink company Wednesday, accusing it of wrongfully using his picture.

Like a Rolling Stone - EMI Takes Another Hit

Billboard and Rolling Stone Magazine report:

THE ROLLING STONES, whose recording deal with EMI is approaching the end, have signed a one album deal with Universal Music for the soundtrack to the film "Shine a Light", directed by Martin Scorsese.

The band currently owns its post-1971 catalogue, but it appears the EMI was the distributor. If the Rolling Stones leave, it will be a major blow to EMI - who have recently, in addition to their other financial problems, lost two other big acts: Paul McCartney and Radiohead. The Wall Street Journal eloquently referred to the situation as a "vote of no confidence by a marquee act"

Zappa Attacka

The estate of Frank Zappa has filed suit in the Southern District of New York against the Rykodisc label for alleged copyright and trademark infringement arising out of the labels alleged unlawful use of Zappa recordings.

OTCS notes that Rykodisc was (and may still be) Zappa's label! What's going on here? Did Rykodisc not watch where the huskies go?

[Adelaide Zappa; The Zappa Family Trust UTD November 15, 1990 v. Rykodisc Inc. filed; 1/15/2008; case number 1:08-cv-00396-AJP ]

DMX No Show = $1.5 Mil in Defamation Case

The AP reports that DMX ne' Earl Simmons was ordered by a Maryland judge to pay $1.5 million in damages for defamation when the rapper failed to appear at a court hearing.

DMX - what were you doing? Was it worth it?

Miami Heat: Hendrix, Now Beatles

Fuego Entertainment, whom OTCS reported plans to release Jimi Hendrix recordings without authorization from Experience Hendrix, is back in the news: the independent label plans to release 15 never-before-heard Beatles live recordings (the first to feature then new-drummer Ringo) made in 1962 at the Star Club in Hamburg, Germany.

However, there is no set release-date, based on what Billboard quotes as "legalities".

January 16, 2008

If 6 Was 9

Experience Hendrix -- who since 1995 has owned and administered all the music and related rights created by the legendary guitarist, singer and songwriter Jimi Hendrix -- is in a legal battle to suppress over 200 bootlegged recordings purchased by Fuego Entertainment. The bootlegged recordings were previously marketed in the UK, and Fuego Entertainment intends to resume their unauthorized exploitation despite appellate decisions in England rejecting claims that the UK distributor had rights to distribute and license the recordings.

If OTCS may direct a Hendrix quote to Fuego, "You're just like crosstown traffic - so hard to get through to you!"

Ne-Yo You Didn't!

Ne-Yo, who was cut from R. Kelly's tour, filed suit in Los Angeles on Dec. 31 against Rowe Entertainment for alleged breach of contract. According to Entertainment Weekly ("Monitor", Issue #974 - Jan. 18, 2008), Ne-Yo claims he was "fired for getting too much attention".

A simple Google search for "Rowe Entertainment" indicates that the defendant is no stranger to litigation.

Apologies for the late report -- west coast readers (or for that matter, any reader) feel free to send tips along!

ASCAP on Rye - Where's the Mustard?

...another cookie-cutter copyright infringement case filed against "a place of business for public entertainment, accommodation, amusement and refreshment" arising out of the defendants alleged public performance of copyrighted works without an ASCAP license.

Really, the only two things to observe (1) once again, a Bon Jovi work is at issue; and (2) it appears that this is another juke-box situation, this time in Missouri.

[Turkey on Rye Music et al. v. J Dalton & Sons LLC, case 4:08-cv-00065; filed 1/15/08; Eastern District of Missouri, Eastern Division]

How Genuine is Ginuwine?

An October, 2007 report over the PRNewswire observed:
Ginuwine and his business partner, Michael Bourne, have cleared up their
differences and restored a solid relationship, the recording artist and his
attorney said Thursday. There is no pending lawsuit or liability, and work on a
new Ginuwine album will begin soon.

But my, how things change over the course of a couple months! Yesterday, the hip-hop artist (on Columbia records) Ginuwine filed suit in the Southern District of New York for alleged fraud and breach of settlement agreement by -- you guessed it -- Michael Bourne and related companies.

[Pa Pah Productions Inc; Elgin Lumpkin pka Ginuwine v. King Music Group Inc.; King Music Group LLC; M&A Holding LLC; Michael Bourne; Does 1-10. Case filed, 1/15/2008; Case no. CV-0391]

Pirate Radio Busted

A Tampa, Florida gangsta rap station was "busted" for operating out of a basement without an FCC license. 3 people were arrested.

Rolling Stone observes that "Given the violent and lyrically-explicit nature of their broadcasts, actual FCC clearance would have been unlikely."

January 15, 2008

RIAA File-Sharing Suits - FYI

OTCS found an interesting article noting that the RIAA has filed 26,000 lawsuits over the past four years against music file sharers. The article summarizes "how the litigation works", and also comments on the "growing cadre of small firms and solo practitioners that has popped up to defend people who claim they have been wrongly accused."

Ross Todd, "Calling the Tunes - A Minnesota Verdict is Sweet Music to a Denver Firm" in The American Lawyer at 20 (Dec. 2007). Article not available on-line.

Ticketmaster Grows

Ticketmaster has entered a deal to acquire TicketsNow, thereby expanding the company's reach into the "resale" category. In other words, "scalping" is now legit.

iTunes, So 5 Minutes Ago

Pepsi announced that it will offer 100 million free downloads from Amazon.com, marking a "change of teams" away from iTunes. The promotion will begin at the Super Bowl next month, and all songs will be in mp3 format (i.e., without DRM).

However, not all the majors are participating due to pricing issues, including UMG. Typically, Amazon pays labels approx. $0.70, but under the promotion record companies will be paid approx. $0.40 per song.

To quote Dave Chappelle, as Rick James "What did the 5 fingers say to [iTunes]? Slap!"

Fool's Game

A month ago, OTCS reported that Michael Bolton et al. was sued by his money manager for breach of contract.

In a bizarre twist, and with probable implications under New York's Civil Practice Law and Rules (i.e., the CPLR), Michael Bolton (and many of the defendant's from the original action) have filed a summons with notice in New York Supreme Court, New York County -- the very same jurisdiction where the original suit was filed -- against Executive Monetary Management, Plaintiff in the original action, for alleged breach of fiduciary duty, fraud, and fraudulent concealment. Damages alleged are $5 mil.

Why is this being filed as a separate suit, rather than as counterclaims or affirmative defenses in the original action under CPLR 3018(b) and 3019? What are the implications for these claims not being asserted in the Answer of the original action, especially if they arise out of the same transaction? Litigators: this one's for you!

[Stowaways LLC; The Second Time Around LLC; MBO Tours Inc.; MBO Productions Inc.; Passion Realty LLC; MB Swings II LLC; Montaigne Records LLC; Passion Films Inc.; M Bolton Entertainment LLC; Bolton Power Blues LLC; Michael Bolton; Mr. Bolton's Music Inc.; Is Hot Music Ltd.; Passion Music Inc.; Bona Justitia Music Inc. v. Executive Monetary Management Inc. Filed 1/14/2008; Case no. 08-600111]

January 14, 2008

EMI Sued for Alleged Poaching of Band from Indy

Beating OTCS to the punch is earthtimes.org, who today reported that indy label Victory Records sued EMI/Virgin in federal court (Southern District of New York) for alleged tortious interference with contract and business relations relating to platinum-selling band Hawthorne Heights.

The alleged inducement to repudiate the contract includes EMI providing $55,000 to the band to sue Chicago-based Victory in 2006, and assistance in finding a litigator.

Victory seeks $10 mil. in damages, and another $25 mil. in punitive damages for "willful, wanton, and deliberate conduct." $35 million!

...all in all, not a good day for EMI. Plus, the allegations likely leave many of the laid-off EMI employees wondering if that $55,000 could have gone towards their salary and/or figuring out a way to not have to fire people.

[** Update 1/15/08, 10:15AM: Victory Records Inc.; Another Victory Inc. v. Virgin Records America Inc.; EMI Music North America; filed, 1/14/2008; case no. CV-0314]

EMI to Cut 1/3 Jobs; Drop Artists; Restructure

EMI, the "major" label behind such artists as The Beatles, Norah Jones, and Coldplay, announced that it will cut 1/3 of its work-force and begin dropping artists. A major label, DROPPING ARTISTS!

Once Terra Firma, the private-equity group that bought EMI last year for £3.2 billion ($6.26 billion), acquired the label, this move seemed inevitable. But ultimately, how far back can this restructuring of the music business be traced? Napster? Has this been in the works since 1995, with the commercial release of the first Internet web-browser (Netscape)?

OTCS invites any employee of EMI to post comments regarding the move, and what life at EMI has been like since Terra Firma took over.

Alleged Infringement - Ft. Lauderdale Bar

A cookie-cutter complaint for alleged infringement of the public performance right to 8 copyrighted compositions by a Fort Lauderdale "place of business for public entertainment, accommodation, amusement and refreshment" was filed in the United States District Court, Southern District of Florida. Plaintiffs - music publishers - allege knowledge and intent based on Defendants' failure to seek or obtain an ASCAP license.

This looks like a juke-box case. The involved compositions include "In Da Club" (50 Cent), "You Give Love a Bad Name" (Bon Jovi), and "Back in Black" (AC/DC).

[Sweet Chin Music et al. v. Art Bar of Fort Lauderdale, LLC; case 0:08:-cv-60044-DTKH; filed Jan. 11, 2008]