June 6, 2008

Ozzy Libel Case - UK/US Distinctions

Billboard reported that "Ozzy Osbourne has accepted undisclosed libel damages and an apology over a U.K. newspaper claim that he was ill at the Brit Awards."

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 4, 2008

'Imagine' State Court Update

Despite Judge Stein (SDNY) denying Plaintiffs' motion for a preliminary injunction on fair use grounds, let us not forget that a related case is pending in New York State court (based on pre-'72 recordings).
Reviewing the papers filed in the state court action reveal that Defendants moved to dismiss the complaint under CPLR 3211. A hearing was requested for June 9, 2008 (9:30AM) in the Motion Submission Part, Room 130, located at 60 Centre Street, New York, New York 10007.

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

Preliminary Injunction Denied in Lennon Case

Commentary from the Wall Street Journal
Patry agrees with court's analysis.

Bit-Torrent Users Arrested in UK

"British Police Confirm Six OiNK Users Arrested" (six individuals were arrested in connection with the uploading of pre-release music; two for the alleged uploading of a single album)

June 1, 2008

DMCA: Prince Blocks YouTube Video of 'Creep' Cover

Here's an interesting question under the Digital Millennium Copyright Act:

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"]