No Jurisdiction Over Indian Ringtone Website Under NY Long Arm

Yash Raj Films (USA), Inc. v. Dishant.com LLC, No 1:08-cv-02715-ENV-RML (E.D.N.Y. filed Dec. 15, 2009) - District Court grants pro se defendants' motion to dismiss for lack of personal jurisdiction pursuant to FRCP 12(b)(2)(4) and New York's long-arm jurisdiction statute, CPLR 302. Defendants' website - which provides access to digitized versions of Indian songs, movies and images that users may stream or download ringtones - is accessible in NY, but does not constitute transaction of business in NY, tortious conduct in NY, or out-of-state tortious conduct causing injury in NY; plaintiff's request for jurisdictional discovery denied.

EMI Sues Video Sharing Website

EMI has filed two related complaints, one by its labels and the other by its publishing units, against the video-sharing website Vimeo .

Capitol Records, LLC v. Vimeo, LLC, No. 09 CV 10101-DAB (S.D.N.Y. complaint filed Dec. 10, 2009); and, EMI Blackwood Music, Inc. v. Vimeo, LLC, No. 09 CV 10105 (S.D.N.Y. complaint filed December 10, 2009).

Both complaints claim direct, contributory and vicarious copyright infringement, and inducement to infringe. The Capitol complaint includes misappropriation and unjust enrichment claims.

NY Statute of Frauds Bars Claims in Warner Acquisition

Snyder v. Bronfman, __ N.Y.3d __, 2009 NY Slip Op 08667 (N.Y. Nov. 23, 2009), holding that quantum meruit and unjust enrichment claims brought to recover the value of plaintiff's services in helping to achieve a corporate acquisition are barred by the statute of frauds contained in General Obligations Law § 5-701 (a) (10).

The deal? Defendant and a group of other investors agreed to acquire Warner Music from Time Warner for approximately $2.6 billion in cash. According to the complaint, Plaintiff was a major contributor to this success: he identified the opportunity, persuaded defendant of its merits, helped to get debt financing and obtained financial information from the target company.

New York's highest court, the Court of Appeals, found: "The essence of plaintiff's claim is that he devoted years of work to finding a business to acquire and causing an acquisition to take place — efforts that ultimately led to defendant's acquisition of his interest in Warner Music. In seeking reasonable compensation for his services, plaintiff obviously seeks to be compensated for finding and negotiating the Warner Music transaction. His claim is of precisely the kind the statute of frauds describes."

Labels Participate in Judicial Forum, Waive Arbitration

Lockett v. Tuff City Records, No. 602900/08, NYLJ 9/25/2009 "Decision of Interest" (Sup. Ct., N.Y. Co. Sep. 21, 2009)

Defendants, record labels and their principals, waived right to arbitration by actively participating in judicial forum. Plaintiffs' action sough monies allegedly owed for royalties. Defendants answered, but did not plead arbitration as an affirmative defense. Moreover, the arbitration demand was made nearly eight months into the litigation, after Defendants had made discovery demands. Additionally, defendants failed to establish that plaintiffs' claims were subject to the alleged arbitration clause in a 1986 recording contract because the songs at issue were recorded prior to 1986. Thus, Plaintiffs' motion to permanently stay arbitration granted.

The Court also denied defendants' motion to dismiss for misjoinder of plaintiffs; instead, the court severed the individual plaintiff's claims and ordered them to obtain a no-fee index number and serve their own complaint within 30 days.

Lastly, the Court denied defendants' motion to remove the action to Small Claims court; and denied both plaintiffs' and defendants' motions for sanctions.

Dep't of Justice on Constitutionality of Copyright Statutory Damages

The U.S. Department of Justice's memorandum in defense of the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. § 504(c). Submitted to the U.S. District Court for the District of Minnesota in the peer-to-peer file sharing case against defendant Jammie Thomas.

Capitol v Thomas - DOJ Memo in Support of Statutory Damages

Royalties for "Sold" CDs

U.S. Philips Corp. v. EMI Music, Inc., __AD3d__; 883 NYS2d 584; 2009 NY Slip Op 06135; NYLJ, 08/10/09, p. 31, col. 2 (2nd Dep't 2009), affirming order which granted plaintiff's motion for summary judgment on the issue of liability with respect to claim seeking payment of royalties for compact discs that were sold but later returned by defendant's customers.

"Contrary to the defendants' contention, the Supreme Court properly found that the language of the parties' license agreement was clear and unambiguous as to the payment by the defendants of certain royalties for compact discs that were "sold," even if the compact discs were later returned by the defendants' customers. In this regard, the subject agreement provided that the defendants would be responsible for paying royalties to the plaintiff for compact discs 'made, used, sold or otherwise disposed of" by the defendants. The agreement further provided that a product "shall be considered sold when invoiced, or if not invoiced, when delivered to a party other than the manufacturer.'"

Webcasting Not 'Interactive Service' Required to Pay License Fees

A webcasting service, Launch, that provides users with individualized Internet radio stations is not required to pay licensing fees to copyright holders of the songs the service plays. The service, which provides the stations by which content is affected by customers' ratings of titles, artists and albums, is not "interactive" as a matter of law. Therefore it is not required to pay individual license fees to the copyright holders; instead, it is only required to pay a statutory licensing fee as set by the Copyright Royalty Board.

Arista Records, LLC v. Launch Media, Inc., no. 07-civ-2567 (2d Cir. Aug. 21, 2009).

Arista v Launch

Plaintiff's Motion to Transfer Granted in Nina Simone Action

Stroud Productions & Enterprises, Inc. v. Castle Rock Entertainment Inc., No. 07 Civ. 8638, 8/17/2009 NYLJ "Decision of Interest" (S.D.N.Y. Aug. 4, 2009) -

Plaintiff's motion to transfer venue to California granted. 28 USC 1404(a). The outcome of a California action will be dispositive to the sole issue in this case, to wit: whether the license pursuant to which Defendants used a Nina Simone song in a film was valid.

Notably, the moving party was plaintiff - in such instance, the SDNY requires plaintiff to demonstrate, in the time since the action was filed, there has been a change of circumstances that warrants transfer of venue.

Copyright Claim Stated Despite Oral License Defense

Ortiz v. Guitian Music Brothers Inc., No. 07 Civ. 3897, 8/12/09 NYLJ "Decision of Interest" (S.D.N.Y. July 22, 2009) (Sweet, J.).

Defendants' FRCP 12(b)(6) motion to dismiss copyright amended complaint denied. According to the amended complaint, plaintiff was solicited to create a series of musical works to be used as the instrumental score for a movie, and plaintiff was to receive certain payments. Plaintiff composed the works for the movie, and 13 works were used as the background instrumental score. The movie was ultimately released, distributed, and sold featuring the works as the background instrumental score. Plaintiff alleges non-payment.

After discussing the Rule 12(b)(6) standard, the Court found that plaintiff had sufficiently plead his claim for copyright infringement under the Rule 8 pleading standards, which require a copyright complaint state: (1) which specific original works are the subject of the claim; (2) that plaintiff owns the copyright; (3) that the works have been registered in accordance with the copyright statute; and (4) by what acts and during what time defendant has infringed the copyright.

Defendants argued that their affirmative defense precluded the action - namely, that plaintiff granted defendants an oral nonexclusive license to use the works in connection with the creation and distribution of the movie. The Court rejected this argument; it was not persuaded that he limited facts alleged in the amended complaint conclusively established such an oral nonexclusive license.

The Court observed that even if it had found such an oral nonexclusive license was apparent on the face of the amended complaint, plaintiff would not be precluded from bringing his copyright claim "because it is further alleged that Defendants did not perform their part of the understanding between the parties." In other words, a licensor can bring an action against a licensee who exceeds or breaches the license agreement. "Indeed, absent consideration, nonexclusive licenses are revocable." Assuming an oral license did exist and plaintiff's allegations of non-payment were true, such license was revocable, and by instituting the action, plaintiff revoked any license that may have existed.

Therefore, the Court denied defendants' motion to dismiss.

No Personal Jurisdiction Over Music Website in Copyright Action

The Royalty Network Inc. v. Dishant.com LLC, No. 08 Civ. 8558 (SHS) (S.D.N.Y. July 29, 2009).

Defendant's FRCP 12(b)(2) motion to dismiss for lack of personal jurisdiction granted; plaintiff's request for jurisdictional discovery denied.

Defendants operate a website which invites visitors to play Indian music, to create "playlists" of Indian songs, and to "listen to and download Bollywood Movie ringtones." Plaintiff, the administrator of music owned by non-party music recording company based in India, brought action alleging that defendants' website provides visitors with unauthorized access to music produced by the record company, thereby violating its copyrights and denying Plaintiff royalties to which it is entitled as administrator.

Plaintiff contended that the Court has specific jurisdiction over defendants pursuant to New York's "long arm" statute, CPLR 302(a)(1) and (a)(3)(ii). The Court disagreed.

After discussing the standard on a 12(b)(2) motion, the Court examined whether Defendants' website conferred personal jurisdiction over defendants, who operated the website from Virginia and had no office, real estate or any employee in New York.

Under the "transacts business in" in New York claim for specific jurisdiction, the Court analyzed the "Spectrum of Interactivity" of the Website (passive, interactive, or somewhere in the middle), and found that the website "falls somewhere in the 'middle ground' and thus the jurisdiction inquiry requires closer evaluation of tis contact with New York residents." Plaintiff contended that the following contacts were sufficient: the website was available to NY visitors who could stream and download material from it; the site sells advertisments to NY based companies; and defendants registered the domain name thorugh a NY company.

Plaintiff, however, provided no evidence that any NY resident actually engaged in any transaction on the website (e.g., registered or downloaded material), or that defendants did anything to indicate their knowing and purposeful transaction with NY visitors. Nor was there anything to indicate that defendants sold to, or interacted with the NY office of any of its advertisers (who have national audiences) or that defendants knew that any of those advertisers were headquartered in NY. There was insufficient evidence to support the inference of a purposeful attempt to take advantage of the NY market. Lastly, even if Defendants registered their domain name through a NY company, there was no nexus between that transaction and those at issue (i.e., the connection was merely coincidental).

Under the "tortious conduct out of state causing injury in state" claim, plaintiff fared no better. Although plaintiff's copyright infringmenet claim validly alleged tortious activity and injury within NY, "the jurisdiction inquiry breaks down" becuase plaintiff proffered insufficient evidence to support a finding that it was reasonably foreseeable to defendants that their conduct would cause such injury in NY. (The "reasonable foreseeability" requirement is construed under NY law consistent with U.S. Supreme Court precedent concerning due process.) Plaintiff pointed to neither tangible manifestations of defendants' intent to target NY, nor concrete facts known to defendants that would lead them to foresee being sued in NY. There was no purposeful NY affiliation or discernable effort to target NY. Plaintiff's "sheer speculation" was insufficient.

Lastly, Plaintiff was unable to make a threshold showing that there was some basis for the assertion of jurisdiction to grant jurisdictional discovery. Moreover, plaintiff did not put forward any compelling reasons why discovery should be allowed, nor did it identify any particular facts it would seek to adduce through such discovery or suggest how discovery could aid the Court's jurisdictional inquiry.
Decision Dishant

Sanctions for Blogging in Music Case?

An attorney representing a college student in a copyright infringment case based on music downloads faces possible court sanctions for an Internet posting of deposition excerpts from his defense. The attorney, Professor Charles Nesson of Harvard Law School, is representing defendant in Capital Records Inc. v. Alaujan, a District of Massachusetts case that several record companies and the RIAA filed against the students.

Judge Nancy Gertner issued an electronic order on July 7 demanding an explanation why defendant and his counsel should not be sanctioned for the posting of parts of a deposition on Harvard Law School's Berkman Center for Internet & Society Web site. The court noted that prior oral and written orders "made clear" that deposition recordings were permitted but "not to be made public via the Internet."

Labels Request to Inspect Home Computers Denied

Sony BMG Music Entertainment v. Tenenbaum, No. 08-MC-00104, 2009 BL 124443 (D.R.I. June 10, 2009).

Court denied various record labels' request to inspect and mirror image the home computer the parents of a defendant in a music downloading copyright infringement action pending in another district court.

Related action against son in another district: Capitol Records, Inc. v. Alaujan, No. 03-CV-

11661 [D. Mass. (i) May 6, 2009 order permitting labels to miror one of defendant's two computers; (ii) May 13, 2009 order that “reminded” the record companies that the Massachusetts lawsuit was “‘not an opportunity to explore any potential copyright infringement committed by [the son] at any time or place’ and that ‘relevant discovery [is] limited to

the infringement of specific songs whose copyrights were owned or licensed by the [record companies] and which were identified in Exhibits A or B to their Complaint.")

In the Rhode Island action, the record labels sought to inspect and mirror Tenenbaum’s parents’ home computer. The parents were not parties to the Massachusetts dispute involving their adult son. Additionally, the parents bought their computer after their son left for college. The court found that although it was possible that the computer contained some evidence relevant to their son's file sharing activities, the record companies had not “shown enough of a likelihood

of relevant evidence to warrant the intrusion of privacy arising out of a forensic computer analysis of a home computer utilized for years by non-parties to the underlying case.” Further, the Mass. court had granted the record companies permission to analyze the son's computer, and thus, the record companies’ request to search for similar information on his parents

computer would be “duplicative and invasive of [the parents’] independent privacy interests as non-parties.” Nor would denial of the motion “handcuff” plaintiff record companies’ ability to litigate the underlying copyright infringement claim: the son had also admitted to downloading music, and the record companies obtained records from the file-sharing service that were attributed to the son's user name/IP address.

Record companies’ motion to compel denied.

Reconsideration of Sanction Denied

Homkow v. Musika Records Inc., No. 04 Civ. 3587, NYLJ 7/10/2009 "Decision of Interest (SDNY June 18, 2009) (denying motion to reconsider).

The Court had adopted magistrate's report to sanction defendants based on plaintiff's hours "primarily spent dealing with, reacting to, and seeking relief from, the steady stream of misstatements from Defendants as to the location and status" of the Master tapes.

On reconsideration, the Court confirmed the Report's assessment. Moreover, Plaintiff'smonetary damages and copyright claims were predicated on Plaintiff's inability to recover the Master tapes. Thus, whatever attorney's fees Plaintiff incurred in pursuit of the monetary damages and copyright claims were as result of Defendants' failure to return the Master tapes as promised.

No Proof of Famousness - Dilution Sum. Judgment Denied

Irby v. Thompson, No. 05 Civ. 9935, NYLJ 6/5/09 "Decision of Interest" (S.D.N.Y. May 29, 2009) (Swain, J.)

Action arists out of the alleged use and dilution of the mark "Hi-Five" by defendants via the production, marketing, and distribution of recordings under the "Hi-Five" name without the consent of former "Hi-Five" bank members (plaintiffs). Plaintiff's second motion for summary judgment denied.

Dilution, 15 U.S.C. 1125(c). Dispute as to whether the mark "Hi-Five" is famous. Plaintiffs provided no evidentiary proffers to establish the mark's fame other than information contained in documents purporting to be pritntouts from the website of the RIAA, for which plaintiffs failed to proffer the necessary foundational support and authentication pursuant to Fed. R. Evid., Art. VIII. Therefore, plaintiffs failed to carry their burden of demonstrating that the "Hi-Five" mark is famous as a matter of law. (The Court expressly decided, fn. 6, that the purported RIAA records were not subject to judicial notice pursuantt o Rule 201 of the Fed. R. of Evid.)

Failure to Prosecute, Fed. R. Civ. P. 41. The Court directed plaintiffs to "show cause" as to why Plaintiffs' claims against all defendants other than a media marketing and distribution business (that allegedly marketed and distributed the recordings in question) should not be dismissed for failure to prosecute.

Summary Judgment. In denying Plaintiffs' second motion for summary judgment, the court held that "No further dispositive pre-trial motions will be entertained."

Reconsideration Denied On Claim of Lost Written Assignment

Tolliver v. McCants, No. 05 Civ. 10840, NYLJ 6/03/09 "Decision of Interest" (S.D.N.Y. May 26, 2009)

The Court had previously granted plaintiff judgment on defendant's copyright infringement. Granting defendant reconsideration in part, the Court reinstated eight affirmative defenses. However, the Court denied reconsdiertion on defendant's claim of a lost written assignment.

Defendant could not rely on plaintiff's prior deposition testimony to create a genuine factual issue as to the written assignment's existence. Also, the Court noted that its earlier ruling found that defendant had admitted that the only written agreement with plaintiff was a recording contract concerning artist's royalties. The court discounted allegedly "new" evidence, and determined that defendant pointed to nothing undermining the Court's prior conclusion that no genuine factual issue existed regarding defendant's claim of a lost written assignment.

Transfer and Contempt in Major Label v. Independent Distributor Case

Atlantic Recording Corp. v. BCD Music Group Inc., No. 08 Civ. 5201, NYLJ 5/14/2009 "Decision of Interest" (S.D.N.Y. May 7, 2009)

Defendant's motion to transfer denied. (Court goes through standard for 28 U.S.C. 1404(a))

Plaintiff's motion for contempt granted (for violating a preliminary injunction order entered on consent).

ASCAP Blanket Fees for YouTube

U.S. v. ASCAP, NYLJ 5/21/2009 "Decision of Interest" (S.D.N.Y. May 13, 2009) (Connor, J.)

Proceeding was before the Court for the setting of interim fees for a blanket license for the public performance of any of the more than two million musical compositions in the repertory of the American Society of Composers, Authors and Publishers ("ASCAP") on the streaming video service provided on the Internet by YouTube, LLC f/k/a YouTube, Inc. ("YouTube").

The Court saw no reason why the basic formula that ASCAP proposed and the Court adopted in United States v. ASCAP in re AOL, RealNetworks and Yahoo! Inc., 562 F. Supp. 2d 413 (S.D.N.Y. 2008) ("In re AOL, et al.") was not equally appropriate in the present context.

It is therefore ordered (1) Within thirty days YouTube shall pay to ASCAP the sum of $1,610,000 for interim fees accrued through March 31, 2009; and (2) Within one week after the end of each calendar month after March 2009 until the determination of final fees in this proceeding, YouTube shall pay to ASCAP the sum of $70,000 for interim fees accruing during that month. These interim fees are subject to retroactive adjustment when final fees are determined.

Don Henley Complaint Against Politician

Don Henley v. Devore, No. 09 Cv. 0481-JVS (C.D. Cal. complaint filed 4/17/2009)


"This action arises out of the wholesale appropriation and exploitation by Defendants DeVore and Hart of the well-known and valuable song "The Boys of Summer," written by Plaintiffs Don Henley and Mike CampbelL. Defendants' infringing conduct is unauthorized, brazenly wilful, and pursued solely in order to promote DeVore and Hart's personal and professional agenda. Openly flouting Henley and Campbell's intellectual property rights, DeVore and Hart copied almost
all of Henley and Campbell's copyrighted musical composition note for note and, altering the lyrics to suit their own purpose and using a recorded performance of the work to mimic the original Henley recording, produced and distributed a video featuring Henley and Campbell's song (the "Boys of Summer Video"). DeVore and Hart's avowed aim in doingthis was to use the Boys of Summer Video to promote DeVore's campaign for th~ Republican nomination for the U.S. Senate in 2010.

"My Humps" Licensing Suit

Tolliver v. McCants, 05 Civ. 10840, 4/7/09 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2009)

In 1982, plaintiff collaborated with defendant to produce a music album that included a recording of a musical composition entitled, "I Need a Freak." In 2005, defendant licensed the composition to the popular music group, The Black Eyed Peas, for use in their hit single, "My Humps." At issue in this case is whether the grant of the license by defendant infringed upon plaintiff's copyright to the composition. Both parties cross-moved for summary judgment. Plaintiff's motion was granted; defendant's denied.

Issues:

Statute of Frauds: No writing assigning to defendant right to license work for derivative works, therefore no valid assignment so that the license for "My Humps" violated plaintiff's copyright.

Statute of Limitations: "conundrum" between the limitations period for an ownership claim and an infringement claim

Adding affirmative defense (laches) on summary judgment motion, 2.5 years after litigation commenced.

Mosh Dancer Assumes Risk

"On the undisputed facts, plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it." Therefore, complaint against rock-club dismissed.

Schoneboom v. B.B. King Blues Club, No. 115632/06, 3/11/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided Feb. 23, 2009)

MP3Tunes Decision on Counterclaims

Defendant's counterclaims Dismissed:

DMCA claim
New York's GBL 349 (re: consumer protection)
Common law unfair competition
California Business and Professional Code 17200

Defendant's counterclaims NOT dismissed:

Declaratory judgment claim that it is a service provider protected by the safe-harbor provision of 17 USC 512 (of the DMCA)

[No. 1:07-cv-09931-WHP-FM (Doc. 73 filed Mar. 4, 2009).]

VideoEgg Transferred to California

In Capitol Records v. VideoEgg, defendant's motion to dismiss for improper venue and lack of jurisdiction was denied, but the case was transferred to California. [Article.]

The jurisdiction discussion focused on defendant's website and New York's long-arm jurisdiction statute (did they "transact business in New York?"). With respect to the transfer request, the court analyzes 7 factors for a transfer under 28 U.S.C. 1404.

No. 1:08-cv-05831-HV-DCF (Doc. 57 filed Mar. 5, 2009)

Buy Concert Ticket, Get Full Catalog

The band No Doubt is offering purchasers of full-priced concert tickets a free download of the band's entire catalog. [Rolling Stone article.]

Assuming a band has not signed a record deal with a major ticket company (e.g., Ticketmaster), how is the deal between the band's record label and the concert promotor structured? In other words, how does the record company collect revenue for download of sound recordings?

Signs Signs Everywhere There's Signs

...Signs of the times, that is.

1) Summer musical festivals now offer installment payment plans for tickets.
[NYTimes article.]

2) The New York Metropolitan Opera offers its famous Chagall paintings as collateral for a loan from JPMorgan Chase.
[NYTimes article.]

EMI Sues Seeqpod & Favtape.com

Capitol Records LLC et. al. v. Seeqpod, Inc., No. 09 cv 1584 (S.D.N.Y. filed 2/20/09).

"The Seeqpod site and service are designed to, and do, encourage and facilitate the search for, and the unlawful production, distribution and public performance of, copyrighted sound recordings and the copyrighted compositions embodied therein. In response to a user's query for a particular recording or recording artist, SeeqPod's proprietary algorithims - which SeeqPod's CEO and founder, Kazian Franks refers to as SeeqPod's "targeted crawling system" - crawl the Internet specifically to locate and index unlawful MP3 files of copyrighted sound recordings and compositions. SeeqPod then formats and presents the results as direct links to those unlawful files. A click on any one of these links will automatically cause the recording and composition to be reproduced and performed, via "streaming" technology, on and via SeeqPod's own MP3 software "player."

Paragraph 48.

Fair Use & Blogging

The NYTimes has an interesting article concerning bloggers excerpting portions of other news articles online.

The editors of many Web sites, including ones operated by the Times Company, post excerpts from competitors’ content from time to time. At what point does excerpting from an article become illegal copying? Courts have not provided much of an answer.

Brian Stelter, "Copyright Holders Challenge Sites that Excerpt," 3/1/09 New York Times, Business - Media and Advertising.

Senate Proposes Royalties for Broadcast Sound Recordings

A new bill has been introduced in the Senate that would require over-the-air radio broadcasters to pay royalties for performances of sound recordings. Radio already pays royalties to composers for the music they broadcast, but since the advent of radio, stations have not been required to pay royalties to the performing artists or record labels. The new bill would give sound recording copyright holders the right to control performances of their recordings, but would set up a compulsory license under which radio stations would be able to perform sound recordings pursuant to agreed-upon rates.

By Bruce G. Joseph and Matthew J. Astle, Wiley Rein LLP (2/20/09)

Ticketmaster Settles with Attny Gen. in Springsteen Fiasco

"Attorney General Announces Settlement with Ticketmaster on Sale of Springsteen TicketsTickets will be made available for thousands of consumers shut out by Ticketmaster and steered to a more expensive ticket re-sale website." (Announcement; 2/23/09)

Attorney General Anne Milgram announced today a settlement with Ticketmaster to resolve more than two thousand complaints filed by consumers with the State Division of Consumer Affairs this month in connection with the sale of tickets to Bruce Springsteen and the E Street Band concerts scheduled for May at the Izod Center in the Meadowlands in East Rutherford, New Jersey. The agreement also mandates reforms to Ticketmaster’s business practices.

Copyright Statute of Limitations Bars Suit

"Plaintiff's infringement and ownership claims premised on his alleged full copyright ownership of the songs is barred by the statute of limitations. Plaintiff had been having 'numerous discussions and several meetings' with representatives of Atlantic, Warner/Chappell's predecessor-in-interest, as early as 1988 and knew that Atlantic was claiming a right to publish the songs at that time. Therefore, the three-year statute of limitations expired at latest in 1991 and, as the instant action was filed in 2006, Plaintiff's claims must be dismissed for untimeliness.

***

Plaintiff asserts that settlement discussions took place throughout this time period, but settlement discussions are not the sort of extraordinary circumstance that justify Plaintiff's failure to bring the instant action in a timely manner or to continue prosecuting the 1991 lawsuit, absent evidence of any misrepresentations from the relevant entities or any other type of egregious misconduct at any time during the relevant period."

Poindexter v. Warner/Chappell Music Inc., 2/23/09 N.Y.L.J. "Decision of Interest" (S.D.N.Y. Feb. 9, 2009)

[Procedural note: the Court converted Defendant's 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment, pursuant to Rule 12(d), "because both parties referenced and submitted materials beyond the scope of the complaint." The parties were permitted to make additional submissions.]

Using Music to Market

Banana Republic is using musicians to sell clothes. [AdAge article.]

"Banana Republic has recruited nine artists, from unknowns to Grammy award-winners to model clothes and contribute a host of multimedia content, including unreleased material, original songs and videos."

Wha?

Bob Dylan's former Greenwich Village haunt "Cafe Wha?" sued for alleged copyright infringement based on the public performance of copyrighted musical compositions.

Rodsongs et al. v. Cafe Wha NY, LLC, No. 09-01207 (S.D.N.Y. filed Feb. 10, 2009).

Suit in Canada Alleging Ticketmaster is a Scalper

A $410 million lawsuit alleges Henry Krajewski was redirected to TicketsNow after failing to buy C$66.50 (Canadian dollars) Smashing Pumpkins tickets; he instead paid C$533.65 for a pair of tix using the TicketsNow site as prompted by Ticketmaster. Ontario is a province where there are laws against reselling tickets on the secondary market at more than their face value, according to Billboard.biz.

[Rolling Stone]

Muzak Bankruptcy

Muzak Holdings LLC filed for Chapter 11 Bankruptcy in the US Bankruptcy Court for the District of Delaware. Top 30 unsecured creditors include: Universal Music Enterprises, EMI Capitol Records, ASCAP, Sony Music, Virgin Records, Harry Fox, Rhino Entertainment, SESAC, and BMI.

Motion to Amend Granted to Producer

Moman v. Sony BMG Entertainment, No. 604392/04, 2/5/09 N.Y.L.J. Decision of Interest (Sup.Ct., N.Y. Co. decided Jan. 20, 2009).

The court granted Plaintiff record producer leave to amend his complaint to add an additional cause of action for breach of a third-party beneficiary contract between defendant Sony and Willie Nelson in 1983. Producer argued the 1983 contract surfaced during settlement discussions, and stated that he would receive $225,000 advance royalty payment on his services for CBS Records for co-producing a single Nelson album. Sony argued the 1983 contract was merely a Letter of Direction (LOD) and was not an "open mutual account." It also argued the six year statute of limitations period expired on the claim. The court rejected Sony's argument that the breadth of a 1990 judgment audit of the CBS books and records would have also encompassed royalties from the 1983 LOD. The court noted that Producer claimed he was unaware of the 1983 LOD until 2007 when his current attorney and manager received a copy from Sony.

Cancelled Festival - Artist Damages?

News that this year’s Langerado Festival in Miami, Florida, was canceled due to "sluggish ticket sales" got OTCS thinking...when an artist agrees to perform at a festival, and the festival is thereafter cancelled, is the artist entitled to any damages? What are the terms of the performance agreement? Does it include a liquidated damages clause?

Last year OTCS contemplated that the over-saturation of festivals might lead to the inclusion of "exclusivity" clauses in festival agreements; in this year's economy, might an artist now demand a liquidated damages clause?

Copyright Suit Over Ringtones

WB Music Corp. v. Infospace, Inc., No. 09-cv-0682-ODW (C.D. Cal. complaint filed Jan. 28, 2009).

As alleged in the Complaint (paragraphs 14 and 17):

Defendants...are related companies that, collectively, are (or at all relevant times were) in the business of creating, selling, and distributing cell phone ringtones, including ringtones embodying Plaintiffs' copyrighted musical compositions. Defendants have represented themselves as agents of one another in their dealings with Plaintiffs...

Defendants have unlawfully, and without authority from Plaintiffs, reproduced, distributed, prepared, and sold cell phone ringtones embodying the Musical Compositions.

Foxy Brown - Gotta Serve Somebody

Raymond v. Marchand [p/k/a Foxy Brown], No. 13413/08, 2/2/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., Kings Co. decided Jan. 23, 2009) - ordering a traverse hearing on the issue of service of process.

Hip Hop artist Foxy Brown moved to vacate a default judgment entered against her. The complaint alleged defendant assaulted plaintiff and criminal charges were filed against defendant. Upon appearing in Supreme Court on the criminal charges, plaintiff alleged Foxy Brown was served when she was leaving the courthouse. Foxy Brown denied the allegation, arguing she was never served with legal papers. The court noted the process server's affidavit did not address the manner of service, and that the facts surrounding the service of process as presented by both parties was "so unclear as to raise a question" of the validity of the service. Also, though courts look unfavorably on service of civil process in any part of the courthouse building, it was not unlawful to serve a defendant in a courthouse unless it was done in a manner that caused a disturbance to court proceeding. Where service was allegedly made outside the courthouse, there was no such claim, but ordered a traverse hearing on the issue of service of process.

Quantum Meruit AND Contract Claims Survive in Action Against Label

Gromley v. Atlantic Recording Corp., No. 101041/08, 1/30/09 N.Y.L.J. Decision of Interest (Sup.Ct., N.Y. Co. Jan. 2, 2009)

Defendant record company ("Atlantic") moved to dismiss plaintiff's claims for quantum meruit. Plaintiff alleged defendant owed her the reasonable value of her services regarding the introduction of artists to defendant and overseeing production of records. Atlantic argued for dismissal arguing plaintiff's employment contract, which expired, covered the subject of royalties and contained a merger clause, and precluded the payment of royalties after expiration of the contract.

The court stated it was reasonable to infer the parties did not intend for plaintiff to continue working without expectation of payment even after expiration of the contract. Thus, the claims for unjust enrichment and quantum meruit stated a claim under quasi contract for payment for the period of time after expiration of the employment contract. However, plaintiff's claim seeking compensation under an implied contract for royalties for international sales for the period the contract existed was not actionable.

Festival Cross-MOJO

"AEG Live is helping brands tune up for its compilation of summer music festivals. The producers of the New Orleans Jazz and Heritage Festival, the Coachella Valley Music and Arts Festival, and Stagecoach Country Music Festival have decided to bundle those and nine more of its giant music events to allow marketers to buy across festivals."

How will these festivals retain their geo-cultural uniqueness?

[Beth Snyder Bulik, "Concert Producer Gives Brands Chance to Reach More Bands AEG Live Bundles Together Major Music Festivals So Marketers Can Save Money, Target Fans", 1/29/09 AdAge.com]

Sean Combs Sued Over Glass Design of Cologne Bottle

Patti v. Combs, No. 3:09-cv-30017-MAP (D. Mass. filed Jan. 28, 2009).

Plaintiff claims infringement of his registered copyrights for glass sculptures by defendants' exploitation of bottle used for Sean Jean brand cologne.

Trade dress infringement and unfair competition also alleged.

Mtn. for Judgment and New Trial Denied

Malmsteen v. Berdon LLP, No. 05 Civ. 00958, 1/28/09 N.Y.L.J. Decision of Interest (S.D.N.Y. decided Jan. 20, 2009).

Plaintiff Yngwie Malmsteen ("plaintiff") asserted claims against defendants Berdon, LLP ("Berdon"), Michael Mitnick, James Lewis and James Lewis Entertainment ("JLE") for, inter alia, breach of contract and breach of fiduciary duty. Plaintiff is a professional musician who employed defendant Lewis as his personal manager and defendant Mitnick as his business manager in the 1990s and until early 2000. Plaintiff claimed that Lewis embezzled millions of dollars from him between approximately 1995 and 2000 and that defendants Mitnick and Berdon (collectively, "defendants") enabled Lewis to do so. Plaintiff alleged that defendants acted with fraudulent intent or, alternately, in violation of their contractual and fiduciary duties.

A trial was held in mid-2008. At the close of plaintiff's case, defendants moved for judgment as a matter of law under Rule 50(a) on all of plaintiff's claims. The Court granted the motion with respect to the fraud claim but allowed the breach of contract and breach of fiduciary duty claims to go forward. At the end of the trial, the jury returned a verdict for plaintiff on both of his claims. The special verdict form completed by the jury indicated that plaintiff was entitled to zero dollars on his breach of contract claim, $450,000 in damages on his breach of fiduciary duty claim, and zero dollars in punitive damages on the breach of fiduciary duty claim.

Defendants filed the instant motion seeking (i) judgment as a matter of law pursuant to Rule 50(b) (ii) a new trial pursuant to Rule 59(a), or (iii) denial of the motion for a new trial conditional on plaintiff's acceptance of a remittur on damages.

After outlining the standards for Rules 50 and 59, and remittur, the Court held:

1. A reasonable jury Could Have Concluded That Lewis Embezzled Money From Plaintiff
2. Plaintiff's Breach of Contract Claim is Not Time-Barred
3. A Reasonable Jury Could Have Concluded That Defendants Breached Their Contract With Plaintiff
4. The Jury's Failure to Award Damages for Plaintiff's Breach of Contract Claim Did Not Require Vacatur of the Jury's Finding on Liability
5. A Reasonable Jury Could Have Concluded That Defendants Breached Their Fiduciary Duty to Plaintiff
6. The Jury's Damages Award Was Not Excessive
7. Plaintiff's Summation Did Not Warrant a New Trial

For the foregoing reasons, the Court denied defendant's motions for judgment as a matter of law, for a new trial, and for remittur.

Broadband Fee for Unlimited Downloads

Instead of fighting file-sharing, the local government of the Isle of Man announced a proposal this month that the 80,000 people who live on there would be able to download unlimited amounts of music — perhaps even from notorious peer-to-peer pirate sites. To make this possible, broadband subscribers would pay a nominal fee of as little as £1, or $1.38, a month to their Internet service providers.

[New York Times]

Legal Fees in Death Row Bankruptcy

In the Death Row bankruptcy, bankruptcy attorneys write in their $6.8 million fee request:

The representation of the Trustee in this case has been particularly complex due to the individuals involved in the company’s operations and intentionally illicit, ‘gangster-style’ business operations of the debtor.

[WSJ Blog.]

American Censorship

The Parents Television Council is warning parents and radio stations not to broadcast Britney Spears' "If U Seek Amy" because the organization believes it "would violate the broadcast indecency law" if aired between 6 a.m. and 10 p.m. [Billboard.]

Growing up listening to Howard Stern, OTCS can't help but wonder: if Britney Spears violates indecency laws, is it time to reexamine the scope (and purpose) of broadcast indeceny laws?

Music Videos Authorized by Artist - Where does the Label Come In?

Recently, OTCS was forwarded a link for Black Cab Sessions. For fans of indie music, this site is a must. In sum, it's "unplugged" - but in the back of a taxi driving around London. (Favorites include Bon Iver, and Jens Lemkin.)

The site got OTCS thinking. Generally, an artist's recording agreement provides that the label owns all rights in recorded live performances and music videos. But, where an artist agrees to be recorded for online distribution, where does the label come in? Is it a "bootleg" if the artist agrees to be recorded without the label's consent? Do labels even care, and if yes, how can they capitalize on it? What sort of protection can a indie video producer/web-site receive from the artist? Where does the publisher come in?

OTCS doesn't have the answers, nor does it have any idea about the specifics of Black Cab. But, these issues might arise in the future.

Improper Joinder of Doe Cases

From the Bloomberg IP Report, Vol.2, No. 2, p. 8-9 (Jan. 12, 2009)

District of Connecticut Finds Record Companies Improperly Joined Doe Defendants in Two Closely Related Peer-to-Peer File Sharing Cases

Synopsis: In two closely related actions, the U.S. District Court for the District of Connecticut determined that plaintiff record companies improperly joined doe defendants in copyright
infringement suits involving peer-to-peer file sharing. The court also held, however, that the record labels could immediately serve subpoenas on the Internet Service Providers (ISPs) to
determine the doe defendants’ identities.

Analysis of: Arista Records, LLC v. Does 1-4, No. 08-CV-01280, 2008 BL 273554 (D. Conn. Dec. 9, 2008); and Interscope Records v. Does 1-6, No. 08-CV-01284, 2008 BL 273554 (D. Conn. Dec. 9, 2008).

Flight of the Conchords - Download Songs After Airing

Billboard announces that after each new episode of HBO's Flight of the Conchords, fans can download songs featured in the previous night's show.

Bret. Jermaine. Thank you.

Denying Summary Judgment to RIAA in Veoh

In the federal case UMG Recordings v. Veoh Networks, UMG's motion for summary judgment has been denied. UMG moved for partial summary judgment determining that Veoh was not entitled to the "safe harbor" afforded by the Digital Millennium Copyright Act. The District Court disagreed.

Decision.

UMG Recordings, Inc. v. Veoh Networks, Inc., No. 2:07-cv-05744-AHM-AJW (C.D. Cal., decided Dec. 29, 2008) [Doc. 293]

Has Anyone Read?

Steve Knopper, APPETITE FOR SELF-DESTRUCTION: The Spectacular Crash of the Record Industry in the Digital Age (Free Press 2009).

Commentary from New York Times.

Barring Foreign FM Broadcasts in Europe

Sabrina Tavernise, "Azerbaijan Bars Foreigners From Use of Its FM Band", 1/6/09 New York Times (World).

Azerbaijan has begun to enforce a law that bans foreign companies from broadcasting on national frequencies, effectively closing its airwaves non-domestic radio broadcasters. Foreign companies are still permitted to broadcast on shortwaves, satellite and cable. “They can broadcast any way they like, except for on our national FM frequency,” said an official in Azerbaijan’s presidential administration.

iTunes Goes DRM-Free on Remaining Majors

Apple reportedly has signed a deal with three more major labels (Sony, Universal and Warner Music) to bring more DRM-free MP3s to iTunes.

As part of the deal, Apple will reportedly be more lax on their strict price fix, breaking MP3s into three tiered pricing: Older catalog tracks,79-cents; newer songs, 99-cents; and hit songs, more.

[Rolling Stone]

Zappa/Ryko Dispute Update

A reader emailed us asking for an update on earlier postings (January 2008) about a dispute between the Estate of Frank Zappa and the Rykodisc label.

The docket sheet indicates that after some initial scheduling issues, defendant Rykodisc filed a motion to dismiss and for a more definitive statement in June 2008 (Docket no. 17).  On Sept. 3, 2008, the court granted defendant's motion to dismiss plaintiff's Lanham Act claims (i.e., trademark claims), but denied the motion for a more definitive statement (Fed.R. Civ. P. 12(e)).  (Docket no. 25).  Unfortunately, the order refers to an August hearing for its reasoning, the transcript of which is not available.

Thereafter, defendant answered the amended complaint, and the parties are now litigating issues concerning leave to serve interrogatories. 

[Zappa v. Rykodisc, Inc.; case no. 08-cv-00396-WHP (S.D.N.Y. filed 1/15/08)]

Suit Against Singer's Heirs Advances Over Royalties

Artists Rights Enforcement Corp. v. Haskins, No. 105227/04, 2008 NY Slip Op 33357(U), 1/2/09 N.Y.L.J. "Decision of Interest" (N.Y. Sup. Ct., N.Y. Co., Dec. 16, 2008)

Plaintiff corporation specializes in assisting artists, songwriters and music publishers with the recovery of royalties and other fees due from their artistic material and/or performances. Plaintiff now asserts causes of action for breach of contract, tortious interference with contractual relations and tortious interference with prospective economic advantage against the heir of John Kendricks, a singer and composer, whose work includes "The Twist." The action is based on a 1984 agreement between plaintiff and the singer/composer. For many years, until the mid-1980s, the singer/composer was not receiving royalties. In an effort to collect the royalties, he entered into a written letter agreement with plaintiff in 1984. It was undisputed that the singer/composer signed the 1984 agreement, under which plaintiff was entitled to receive 50% of all amounts realized as a "proximate result" of plaintiff's activities in recovering royalties due to the singer/composer. The court denied plaintiff's summary judgment motion.