Sirius To Be Liable To Turtles On Pre-1972 Sound Recording Claims

Flo & Eddie, Inc. v. Sirius XM Radio Inc., 1:13-cv-05784 (S.D.N.Y. filed Jan. 15, 2015) [Doc. 114].

The Court found that Sirius will be found liable to the Turtles' successor in interest for common law copyright infringement of pre-1972 sound recordings, but deferred entering judgment as to liability until the plaintiff decided whether to proceed individually or as a class action representative.

First, the Court rejected Sirius' argument that the plaintiff's had not yet established ownership of the recordings.  The Court found that documentary evidence of the transfer of rights from the Turtles to the plaintiff was not required because an assignment of common law copyrights need not be in writing to be valid under New York law; that a court may infer that a transfer has taken place from subsequent conduct.

Second, the Court rejected Sirius' argument that it had an implied license.  There was no evidence that the recordings were created at Sirius' request (indeed, Sirius did not even exist when the recordings were made), nor any evidence that plaintiff "handed over" the recordings to Sirius (let alone with intent for Sirius to copy and distribute the recordings).  Mere acquiescence was insufficient.

Third, the Court rejected Sirius' waiver and estoppel defenses.  The Court found that plaintiff's failure to pursue infringement actions for many years while the recordings were played on the air did not constitute a waiver.  Inaction was insufficient.  The estoppel defense failed because there was no proof that Plaintiff made any false representations to Sirius or concealed any material fact with intent to deceive.  Even if Sirius relied on general industry practice as to pre-1972 recordings, and the lack of any lawsuits over the years challenging that practice, the Court found that was distinguishable from relying on affirmative conduct by the plaintiff.

Fourth, the Court found that there is a three year statute of limitations under New York law, and that while plaintiff's claim was not time-barred, it could only recover damages for infringement going back three years.  The Court distinguished the case from those in which ownership of the copyright is in dispute between the parties; here, infringement is the primary issue (there is no claim by Sirius that it owns the copyrights).

Lastly, the Court found that it would defer on ruling on the merits until the issue of class certification was decided.  The Court directed plaintiff to notify it if it intends to proceed individually or as a class action representative.

Iggy Azalea Granted Preliminary Injunction To Prevent The Posting Of Early Recordings

Kelley v. Primco Management, Inc., No. 14-cv-07263 (C.D. Cal. Jan. 12, 2015).

Pop star Iggy Azalea obtained a preliminary injunction based on claims that Defendants misappropriated the contents of her computer and began releasing infringing songs and music videos.  Defendants claims that they had authority to use Azalea's name, likeness and various intellectual property assets pursuant to a Recording Agreement.  Azalea claimed that the document was forged, and that was the key issue before the Court because no party disputed that Defendants had exploited Azalea's copyrights, trademarks and right of publicity.  The Court held an evidentiary hearing and discussed the evidence presented on whether the document was forged.  It concluded that, even though there was sharply conflicting testimony, Azalea had at the very least raised serious questions about the validity of the agreement, and therefore had raised serious questions going to the merits of her claims which were enough to grant a preliminary injunction.  The court then considered the factors necessary for a preliminary injunction -- likelihood of success on the merits, threat of irreparable harm, balancing the equities, and the public interest -- and found that an injunction was warranted.  Azalea was ordered to post a $20,000 bond.