August 16, 2013

Copyright Case Properly Reinstated Against Church

Yesh Music v. Lakewood Church et al., No. 12-20520 [Doc. 00512341666] (5th Cir. filed 08/14/2013).

Plaintiff filed a copyright infringement complaint against Defendants in Texas.  Defendants are a large church and its pastors, Joel and Victoria Osteen.  Plaintiff had granted the church a limited license to use a song
in connection with various  marketing media.  When the church used the song in a televised promotional broadcast, Plaintiff asserted that the limited license did not permit use of the song on television and that in any case, the term of the license had expired. Unable to resolve their dispute, Plaintiff filed a copyright infringement suit against Defendants.

Plaintiffs it later voluntarily dismissed the lawsuit without prejudice.  Plaintiff then filed an identical case in federal court in New York.  Back in Texas, the church has filed a motion for its costs and when the parties were before the Court on that matter, the parties agreed on the record to dismiss the New York action and re-instate the Texas action. Because under Rule 41(a)(1)(B), the two successive voluntary dismissals of the lawsuit had the effect of rendering the second dismissal as one with prejudice, Plaintiff filed a motion to vacate its voluntary dismissal under Rule 60(b), which the district court granted.  Defendant opposed, arguing that Rule 60(b) only applies to a "final" order or judgment, and the first voluntary dismissal was not "final."  The Fifth Circuit found that a voluntary dismissal without prejudice is a “final proceeding” under Rule 60(b) and the district court did not abuse its discretion in reinstating the case.

August 15, 2013

New York Law On Photographing And Recording Concerts

In researching for an unrelated matter, I came across New York's Arts and Cultural Affairs Law § 31.01.  The law was enacted in 1983.  Imagine how it might apply today, with the abundance of iPhones and other smart-phones with image capturing and sound recording capabilities.

The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so."  Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.

Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance.  Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre. 

If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.  

The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."

There are no reported cases under this statute.


August 14, 2013

Article re Registering Multiple Works In A Single Copyright Registration

Marc Jacobson and Marc Pellegrino, "Registering Multiple Musical Works in a Single Copyright Registration", NYSBA Entertainment, Arts and Sports Law Journal, Vol. 24 No. 2, pp. 13-16 (Summer 2013).

This article clarifies:
"...if music is being commercially released exclusively via sale of a complete album, one is only entitled to one statutory damage award for any infringements therein.  If, on the other hand, the individual songs on that album, which were registered as part of the single application, are also 'issued' individually, those individually released songs gain full statutory damage protection."
The article was a reply to an earlier published article wherein the author had suggested that a single copyright application for more than one work can retain all the legal remedies afforded by the Copyright Act while saving money by avoiding multiple registration fees. Citing Bryant v. Media Rights Prods., Inc., 603 F.3d 135 (2d Cir. 2010), and Arista Records LLC v. Lime Group LLC, 2011 WL 1311771 (S.D.N.Y. 2011), the article suggests that traditional registration of each track and each song may still provide the best possible protection for sound recordings and musical compositions.