September 12, 2013

Beastie Boys Avoid Several Copyright Claims In Sampling Case

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).

Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill).  Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).

The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard.  Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements.  Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement."  Under the quantitative analysis, the concept of de minimis copying is relevant.  Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs.  Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples.  Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).

September 11, 2013

Radio Station Not Liable On Claims Based On Number Of Podcast Downloads

Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc., 2013 ILRC 2580, 2013 WL 4516739 (Ga. Ct. App. 2013).

Plaintiff advertised its music education services on defendant's radio station, but failed to pay.  The radio station sued for "open account", and the plaintiff counter-claimed for breach of contract and fraud.  The crux of plaintiff's claims was that the radio station misrepresented the exposure it would provide through podcast downloads.  According to plaintiff, the radio station failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program plaintiff sponsored and, as a result, plaintiff did not receive the advertising exposure it had bargained for.

The court found that the radio station was not liable on the breach of contract claim because the plaintiff failed to present any evidence to show that the radio station promised that there would be a certain number of future downloads of the program.  Instead, the radio station "promoted the program's national popularity by stating that it 'has received hundreds of thousands of downloads,' in other words, in the past".  The fraud claim similarly failed because the plaintiff sought, not a certain number of downloads, but, rather, to sponsor a radio show for a specific time period.  Any prediction regarding future download statistics would be conjecture, falling short of fraud.

YMCA Termination Rights

From the New York Times (article here):

A Copyright Victory, 35 Years Later
Victor Willis, a former member of the Village People, is set to take control of a share of the copyright to songs he wrote for the group.