Record Distribution Deals - Change of Ownership Clause

Regarding the Disney label's agreement with EMI for the exclusive global distribution of albums recorded by 'tween band the Jonas Brothers, Rolling Stone reports "Disney’s international distribution contract with EMI expires at year’s end, but the Company That Mickey Built is already looking into a “change-of-ownership” clause that would allow them to opt out earlier."

Though both Disney and EMI deny the rift, it is interesting that the agreement contained such a clause. Compare Bonnie Greenberg, Distribution Companies and Record Labels in 9 ENTERTAINMENT INDUSTRY CONTRACTS: NEGOTIATING AND DRAFTING GUIDE para. 167.01 form 167-1 para. 8(D), (F) (Donald C. Farber ed., 2007).

Joinder in DOE Suits

A California federal judge rejected joinder of John Does 2-5 in a P2P suit filed by the multiple record labels. See Rules 20 and 21 of the Federal Rules of Civil Procedure. In its order denying plaintiff's motion for reconsideration, the court cited authority for its holding:

...numerous courts have held the opposite: that joinder of defendants who allegedly downloaded music using the same ISP and the same file-sharing program is improper. See, e.g., Interscope Records v. Doe, No. 04-0197 (M.D. Fla. Apr. 1, 2004) (severing defendants who used the same ISP and same file-sharing program); see also BMG Music v. Doe, No. 06-CV-1579 (N.D. Cal. July 31, 2006) (severing defendants who used the same ISP); BMG Music v. Doe, No. 04-650 (E.D.Pa. Mar. 5, 2004) (same); Twentieth Century Fox Film Corp. v. Doe, No. C-04-4862 ("[The allegation that defendants used the same ISP] amounts to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.").

Analysis by Recording Industry v. the People here.

[Sony BMG Music Entertainment v. Does 1-5; No. Cv-07 2434-SJO (C.D.Cal denying plaintiff's motion for reconsideration entered Sep. 4, 2007) (Docket No. 9)]

Radiohead Authorizes Unauthorized Remix of "In Rainbows"

Radiohead - again challenging industry standard! Rolling Stone reports "Amplive’s remixed version of Radiohead’s In Rainbows has finally gotten the green light from the Oxford quintet after the band initially denied its release." And from Amplive,

After a cease & desist put the breaks on Amplive's Radiohead In Rainbows remix project, the online music community reasonably wondered if the tracks would ever see the light of day. Well, here they are. While the Oakland producer/DJ acknowledges that he probably should have contacted Radiohead (who were not involved in the project) to seek approval prior to making his interpretations publicly available, an agreement has been reached between all involved parties and Amplive has been granted permission to release Rainydayz Remixes for free to the general public. Effective immediately, the eight-track record is available here.

So, to clarify. Radiohead releases an album, initially online in a pay-your-own-price scheme and subsequently in physical (traditionally priced) formats, all without label support. A remix of the album is created without authorization from Radiohead. A cease & desist letter is issued. The cease & desist letter is abandoned. The remix is distributed WITH authorization, for free, online.

Why did Radiohead change their mind and grant authorization? If the remix is distributed on-line for free, is there a licensing fee and if yes, on what is it based?

RIAA Elaborates on Nature of P2P Copyright Infringement

This brief, filed by the RIAA in a P2P file-sharing case, showcases the recording industry's analysis of copyright infringement arising out of the online distribution of sound recordings by P2P users.

[Atlantic Recording Corp. v. Howell, No. 2:06-cv-02076-PHX-NVW (D.Ariz brief filed Feb. 6, 2008)]

Dick Clark Seeks Removal to Federal Court

On January 4, 2008, crooner Brian K. Evans filed suit in California state court against the legendary Dick Clark's production company on three causes of action arising out of defendant's use of the sound recording "It Had to be You" in connection with the television show (and international concert tour of) So You Think You Can Dance: breach of contract, fraud, and for an accounting. But, as the complaint explicitly indicated,

NATURE OF THE ACTION
6. This complaint concerns the breach of a written contract and the infringement of copyrighted property of Mr. Evans, specifically his recording of the song "It Had To Be You," the master of which is owned by the Plaintiff. The copyright registration number of this song is SR0000357687 (dated 06-22-2004). This particular song was used in the tour "So You Think You Can Dance." The recording of this song is not subject to BMI, ASCAP regulations or procedures. Plaintiff recorded this song on his own and licensed it to Dick Clark Productions, Inc.

Evans v. Dick Clark Productions, Inc., No. SC096606 (Cal. Super.Ct., Los Angeles Co. - Western Dist.) (Emphasis added.)

In response, Defendant filed a notice of removal to the federal district court in the Central District of California, noting that federal courts have original jurisdiction over copyright cases pursuant to 28 U.S.C. 1338(a). ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights... Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases."). Further, Dick Clark argued that 17 U.S.C. 301(a) is "a broad preemption provision that preempts all state law claims within the general scope of copyright."

Given the above, it is unclear why Plaintiff (who is not appearing pro se) filed suit in state court.

[Evans v. Dick Clark Productions, Inc., No. 2:08-cv-00800-SVW-FFM (C.D.Cal, notice of removal filed Feb. 6, 2008)]

Copyright Statute of Limitations Issues

In Armstrong v. Global Pacific Records, Inc., No. 1:08-cv-10228-PBS (D.Mass complaint filed 2/11/08), Plaintiff -- alleged author of various musical compositions and related master recordings -- filed suit against a record label for breach of contract, and copyright infringment of those various compositions and related sound recordings.

Plaintiff's breach of contract claim arises out of the defendant record label's failure to ever pay royalties (both mechanical, and for the sound recordings). Given Plaintiff's allegations that the contracts were entered into no later than 1993, is their breach of contract claim barred by Massachusett's 6-year statute of limitations on contract claims?

Additionally, Plaintiff's copyright claims arise out of defendant's alleged unauthorized exploitation of the sound recordings and musical compositions since no later than (depending on the work at issue) both 1988 and 1997. At what point did Plaintiff's claim accrue, and is it barred by section 507(b) of the Copyright Act: "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued."

Especially interesting is that Plaintiff did not obtain copyright registrations for the sound recordings or musical compositions until the summer of 2007; presumably, registrations were obtained so that Plaintiff could file suit (17 U.S.C. 411). However, the sound recordings embodying the compositions at issue were recorded and commercially released in 1988 and/or 1992-1993. What effect does Plaintiff's recent registration have, including on Plaintiff's damages?

Oh, Yoko - Petition to Cancel LENNON Mark

Oh, Yoko...

TMZ reports that "Lennon Murphy, a singer-songwriter whose band is called Lennon, has been sued by Yoko for 'tarnishment' of her widow's name [sic] and for 'fraudulently' registering the name as a trademark." However, it rather appears that Yoko Ono (as she herself clarified) filed a petition for cancellation with the Trademark Trial and Appeal Board seeking to cancel Trademark Registration No. 2676604, based on Registration numbers 1769796 and 1488395 for the marks JOHN LENNON.

Petitioner claimed Murphy obtained her registration fraudulently, and that Murphy's mark dilutes and/or tarnishes her late husband's surname. Petitioner did not, however, make a section 2(d) likelihood of confusion claim in her petition (15 U.S.C. 1052). USPTO TTAB Cancellation number 92048785; filed 1/18/08.

The petition is unusual in certain respects. Whether the petitioner intended to bring a likelihood of confusion claim is unclear. When filing the petition to cancel electronically, petitioner did identify Section 2(d) as a cause, however the petition has no pleadings referring to likelihood of confusion.

Additionally, it is interesting that the substance of the fraud allegation is that applicant did not identify that her first name was Lennon. However that fact was disclosed in that she filed the application as an individual, in her own name, Lennon Murphy.

Lastly, according to TMZ, Murphy asserts that the band has a co-existence agreement to use the LENNON mark (Yoko gave her "blessing"), raising a possible acquiesence argument.

[Documents can be accessed via the USPTO Trademark website, by searching TESS for the above registration numbers and then clicking the TTAB tab.]

Capitol v. Multiply Inc. ADJOURNED

As per an endorsed letter dated 2/7/08, Judge Stein adjourned a pre-trial conference until March 7, 2008. But, Judge Stein indicated that he would accept no further adjournments.

...so, dear readers, we wait...

Just Another Day for Dre

Billboard reports that Andre Young p/k/a Dr. Dre filed papers with the U.S. Bankruptcy Court in Los Angeles seeking to determine the value of a claim he holds against Death Row Records for unpaid royalties accruing after the record label's bankruptcy filing. Young is asking for permission to obtain this information under Rule 2004 of the U.S. Bankruptcy Code, which allows bankruptcy judges to order companies to turn over documents related to their assets, liabilities and financial affairs.

Rent Due for DD

Damon Dash is again facing legal woes, as his LLC's landlord sued him in New York Supreme Court to recover unpaid rent.

[25 West 39th Street Realty LLC v. Damon Dash Enterprises I LLC; filed, 2/8/2008; case no. 08-600386]