Zeppelin Named as Plaintiffs in ASCAP Suits

We've covered the public performance cases filed by ASCAP and BMI, and usually the named plaintiffs are (i) major publishers, like EMI and SonyATV, and (ii) the artists' boutique-publishing LLC. So, it was with great surprise that OTCS discovered this public performance case with the members of Led Zeppelin as individual named plaintiffs.

Don't get excited. The complaint is as vanilla as the rest. But, it is interesting to observe that Led Zeppelin appears to handle their publishing personally, at least on some level.

The Caption -- No. 1:08-cv-00604-WDM (D.Colorado filed Mar. 24, 2008)

ODNIL MUSIC LIMITED, FIFTY-SIX HOPE ROAD MUSIC LIMITED, JAMES PAGE (JIMMY PAGE), ROBERT PLANT, JOHN BALDWIN (JOHN PAUL JONES) and PATRICIA BONHAM, individually and as Guardian of the children of deceased author JOHN BONHAM, JASON BONHAM and ZOE BONHAM

Plaintiffs,

v.

FRANKIE’S TOO, INC, and
FRANKIE D. PATTON

Smashing Pumpkins Sue Label

Tipsters, where are you?

Billboard:
The Smashing Pumpkins are suing Virgin Records, saying the record label has illegally used their name and music in promotional deals that hurt the band's credibility with fans

The AP:
Virgin put out the Smashing Pumpkins' music for more than 17 years, but the only active agreement between the two parties, the lawsuit claimed, is a deal granting Virgin permission to sell digital downloads of the band's songs. The agreement does not give Virgin the right to use the band in promotional campaigns to sell outside products, the lawsuit said.

UPDATE (3/26/08) -- Billy Corgan speaks out: "I'm sure they indicated to Pepsi that they had a right to do this, full well knowing they do not have the right,"

[breach-of-contract lawsuit filed in Los Angeles Superior Court Monday, 3/24/08]

Beatles Complaint Available

The complaint in Apple Corp v. Fuego Entertainment is available online. [Request a copy.]

Of particular interest is the FACTS section, which serves as a supplement to the vast library of Beatles history, and their early days at the Star Club in Germany.

Legal Counts:

• Unauthorized Fixation and Trafficking in Sound Recordings (Injunctive Relief / Damages)


• Common Law Copyright Infringement (Pre-72 Recordings) (Injunctive Relief / Damages)


• Trademark Infringement (Injunctive Relief / Damages)


• Federal Unfair Competition (Injunctive Relief / Damages)


• Common Law Unfair Competition and Trademark Infringement (Injunctive Relief / Damages)


• Federal Dilution (Injunctive Relief / Damages)


• Dilution and Injury to Business Reputation (Injunctive Relief)


• Unauthorized Publication of Name or Likeness (Injunctive Relief / Damages)

[Apple Corps Limited v. Fuego Entertainment, Inc. et al., No. 1:08-cv-20748-WMH (S.D.Fla. filed Mar. 21, 2008)]

Kanye & Jay-Z "What? What?"

Kanye West and Jay-Z are among the co-defendants in a case filed in the District of Maryland (which Plaintiff erroneously describes in the caption as being in the Sixth Circuit).

Plaintiff Dayna D. Staggs -- who is likely appearing pro se -- has asserted...request your own copy of the complaint here. The complaint is an interesting, if not sometime confusing, read. But don't get the wrong idea; OTCS believes plaintiff's complaint would withstand a 12(b)(6) motion to dismiss for failure to state a claim!

From what we gather from the single spaced, unnumbered, 6 page complaint (which includes a single signature line for the multiple defendants), Plaintiff seeks injunctive relief, damages, and legal fees arising for copyright infringement, unfair competition, and "unauthorized use of Plaintiff [sic] likeness and Mtv sound recording, composition and internationally musical content entitled 'Volume of Good Life' herein described on phonorecord white label by the United States Library of Congress." Though Plaintiff's grammar and syntax could be improved, the allegations have a good chance of satisfying FRCP's liberal pleading standards (Rule 8). What could be a more "short and plain statement" than one completely lacking legalese?

Plaintiff alleges that he is the songwriter for the composition "Hollar at Me" (1985), released on EMI by R&B artists ICEE HOTT. But, this is all of minor relevance because the alleged infringement relates to Kanye West's release of "Good Life" on Roc-a-fella records. Plaintiff alleges to be the author of a composition and sound recording entitled "Volume of Good Life", which Kanye West sampled without authorization (and which his label released).

Additionally, "the vulgar, sexual and racially-charged nature of the Infringing master work is directly counter to [Plaintiff's] long established public persona, utterly inconsistent with the musician, artist clean image. And harms the reputation of the Dayna D Staggs Copyrighted Rock/Pop master work clean titled 'Volume of Good Life." [sic].

Despite the numerous grammatical errors in his complaint, Plaintiff appears to have some idea of what he is doing. For example, he sent cease and desist letters which "did not receive a favorable response". He alleges the labels have commercially profited from the infringement. He alleges willful infringement -- "Defendants are undoubtedly familiar with [Plaintiff], his songwriter likeness, and also are friends of the Plaintiffs myspace page located at www.myspace.com/dmystro." He makes claims for legal fees, and claims that he has no adequate remedy at law (though he later requests punitive damages and states "the Actual harm Plaintiff suffered is reflected in the amount of licensing fee that Plaintiffs lost because of the infringement").

So in sum, Plaintiff has asserted an unauthorized sampling claim against Kanye West and his label and publishers.

[Staggs v. West et al., No. 08-cv-0728-PJM (D.Md. filed Mar. 20, 2008).]

XM / Sirius Merger Approved by DOJ

Antitrust concerns assuaged: The Justice Department on Monday approved Sirius Satellite Radio Inc.'s proposed $5 billion buyout of rival XM Satellite Radio Holdings Inc. (AP report.)

The merger, however, still awaits FCC approval.

Wave of ASCAP Suits

Billboard reports "ASCAP Sues 29 Establishments".

To our readers - we didn't drop the ball on this. It's just that they're cookie-cutter complaints...

Rolling Stones Take on the Beatles-Fuego Suit

Here.

Of note is the following: "The lawsuit states that Fuego does not have permission to sell the fifteen-song performance because at the time of the recording the Beatles had already entered into an exclusive contract with EMI prohibiting the third party recordings of their concerts." (Emphasis added.)

Query - is Rolling Stone's analysis flawed? Or do they merely need to clarify?

The EMI-Beatles contract would likely have said something like "we (EMI) have the exclusive right to exploit your sound-recordings, which are really OUR sound recordings because any recording you make -- live, or in the studio -- you assign the copyright to us and/or is a work made for hire".

So, Fuego didn't have permission to sell the performance because EMI had the right to record and exploit Beatles' live performances. That the agreement prohibited third party recordings merely goes to the fact that Fuego did not get permission to record and/or exploit the concerts from EMI. Even if the Beatles had not already entered into a recording agreement with EMI, there would still need to be authorization from someone (e.g., the Beatles). Thus, notwithstanding the contracts relevance, isn't its existence at the time of the recording dispositive as to standing -- who is the proper plaintiff -- rather than to the issue of copyright liability?