A tipster wrote in informing OTCS that a Naxos/Pre-72 case (i.e., state common law copyright infringement of sound recording) HAD been filed against the Expelled defendants (see today's earlier posts). After a little research, OTCS reports the following:
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.
Thanks tipster!
April 24, 2008
Lennon - Complaint
Below is the complaint in Lennon et al. v. Premise Media Corp., L.P. et al., No. 08-cv-3813-SHS (S.D.N.Y. filed April 22, 2008). A couple highlights:
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?
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?
Read this doc on Scribd: Lennon v Premise Media Corp COMPLAINT
Fair Use? - 'Imagine' Suit Over Documentary
John Lennon's heirs - Sean, Julian, and Yoko Ono - and his publisher (EMI Blackwood) brought suit in the S.D.N.Y. against the filmmakers behind "Expelled: No Intelligence Allowed" for using John Lennon's "Imagine" in the film without authorization. Plaintiffs seek an injunction and damages.
In response to the suit, defendants cited fair use. "We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song 'Imagine' in our documentary film," they said in a statement.
In response to the suit, defendants cited fair use. "We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song 'Imagine' in our documentary film," they said in a statement.
Readers: any thoughts on fair use?
[Details on case to follow when available...]
April 23, 2008
April 22, 2008
Cell Phone Distribution Model
"Nokia will offer free 12-month access to music from artists of Sony BMG, the world's second-biggest label, to buyers of its particular music phones" [Yahoo News]
Notably, users can keep all the music they download.
Notably, users can keep all the music they download.
April 21, 2008
RIAA Lobbying
"The recording industry's trade group spent nearly $2.8 million pumping up the volume on its lobbying on Capitol Hill last year". (Billboard)
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