On The Cover Songs

80s Rock Band Argues Copyright Claim Is Time Barred

2012-01-23T09:28:00.003-05:00

McCarthy et al. v. Johannesson et al., No. 1:11-cv-07422 (N.D. Ill. filed Jan. 17, 2012) [Doc. 28].

In moving to dismiss pursuant to Rule 12(b)(6), defendants-- members of the 80s rock band "Poison" -- argue that because over 20-25 years have passed since plaintiffs claim that defendants violated plaintiffs' supposed copyright in four of plaintiffs' songs, the action is "spurious and hopelessly timebarred". Additionally, defendants argued that several of the claims are barred because plaintiffs do no have copyright registrations for the songs at issue.

9th Cir. Affirms Public Performance Liability Against Restaurant

2012-01-13T08:53:00.004-05:00

Range Road Music, Inc. v. East Coast Foods, Inc., No. 10-55691 (9th Cir. filed Jan. 12, 2012).

The 9th Circuit affirmed the district court's grant of summary judgment and legal fees in favor of plaintiffs (ASCAP) against defendant (restaurant/lounge). Defendant was vicariously liable for copyright infringement related to the public performance, both by a live band and by a CD, of copyrighted songs. Plaintiff's proof was an investigative report by a visitor to the premises. The report did not need to be by a certified expert because "identifying popular songs does not require 'scientific, technical, or other specialized knowledge'.” The Court rejected defendant's argument that a showing of substantial similarity was required for a public performance case. The Court properly awarded attorney's fees to Plaintiff.

Labels Denied Interlocutory Appeal In MP3Tunes Case

2012-01-12T09:50:00.002-05:00

Capitol Records, Inc. et al. v. MP3Tunes, LLC et al., No. 07-9931 (S.D.N.Y. filed Jan. 9, 2012) [Doc. 277].

Plaintiffs (record companies and music publishers) asked the Court to certify an interlocutory appeal of the Amended Memorandum & Order dated October 25, 2011 ("October 25,2011 Memorandum & Order") pursuant to 28 U.S.C. § 1292(b). Plaintiffs sought interlocutory appeal on whether, (i) the DMCA safe harbors apply to sound recordings fixed before February 15, 1972, (ii) a repeat infringer policy can be reasonably implemented by terminating only "blatant" infringers, and (iii) red flag knowledge of infringement can be established through sources other than takedown notices. The Court denied Plaintiffs' request.

CA Statute Of Limitations Bars Singer's Malpractice Claim

2012-01-12T08:21:00.002-05:00

Basilotta v. Warshavsky, 6508 115524/09, NYLJ 1202538059721, at *1 (1st Dept, Jan. 10, 2012).

Reversing the trial court's decision denying defendant's motion to dismiss, the Appellate Division applied California's one-year statute of limitations for legal malpractice to dismiss Plaintiff's complaint against her former lawyers. It appears that plaintiff had a recording contract with a record label, that label was involuntarily liquidated, and the lawyers allegedly neglected plaintiff's case against the label.

Bob Marley Heirs Settle With UMG

2012-01-11T10:41:00.002-05:00

Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc., Index. No. 08-cv-6143 (SDNY filed Jan. 5, 2012) [Doc. 175].

The Court so-ordered the parties stipulation of dismissal without prejudice.

ReDigi Sued For Copyright Infringement

2012-01-09T09:37:00.002-05:00

Capital Records Inc. v. ReDigi Inc., No. 1:12-cv-00095 (SDNY filed 1/6/2012).

Plaintiff alleges copyright infringement arising from defendant's contributory, vicarious, and inducement of the willful and systemic use of plaintiff's original sound recordings on defendant's "ReDigi" music service. Defendant is an internet business whose stated purpose is to help consumers buy and sell "used" digital music files. Plaintiff seeks $150,000 per infringement (maximum statutory damages for willful infringement).

Veoh Protected By Safe Harbor; 9th Cir.

2011-12-21T12:07:00.003-05:00

UMG Recordings Inc. et al. v. Veoh Networks Inc. et al., No. 09-56777 (9th Cir. filed 12/20/2011) [Doc. 39]

Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one of the world’s largest recorded music and music publishing companies, and includes record labels such as Motown, Def Jam and Geffen. In addition to producing and distributing recorded music, UMG produces music videos. Although Veoh has implemented various
procedures to prevent copyright infringement through its system, users of Veoh’s service have in the past been able, without UMG’s authorization, to download videos containing songs for which UMG owns the copyright. UMG responded by filing suit against Veoh for direct and secondary copyrightinfringement. The district court granted summary judgment to Veoh after determining that it was protected by the Digital Millennium Copyright Act (DMCA) “safe harbor” limiting service providers’ liability for “infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c). The 9th Circuit agreed, and accordingly affirmed.

"We ... hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement under [the statute]".

Statute Of Limitations Limits Damages Claim Against Jay-Z; Concert Profits Questionable Damages

2011-12-16T10:07:00.003-05:00

Fahmy v. Jay-Z, et al., 07-cv-5715-CAS (C.D. Cal. decided. Dec. 9, 2011) [Doc. 309].

Plaintiff brought this copyright infringement action concerning the song Big Pimpin'. The Court concluded that plaintiff may recover damages from any infringement only within three years prior to the filing of his lawsuit unless he can provide other bases for equitably tolling the statute. The Court, however, was unpersuaded by any of the three bases offered by plaintiff for why the statutory period should be equitably tolled. The mere fact that plaintiff lived in Egypt and speaks little to no English did not toll the statutory period. Alleged misrepresentations by the record label did not toll the statute. Lastly, the existence of a prior judicial action did not toll the statute. "Ultimately, plaintiff cannot avoid the fact that he admittedly knew that Big Pimpin’ allegedly infringed Khosara, Khosara by December 2000, more than six years prior to filing the present lawsuit."

The Court next turned to the question of whether Jay-Z’s concert revenues are properly considered direct or indirect profits resulting from his allegedly infringing performances of Big Pimpin’. Because the Court determined that this question presented a triable issue, the Court reserved judgment as to whether plaintiff is able to prove the requisite causal nexus.

UMG's Venue And Transfer Motions Denied In Digital Class Action

2011-11-02T10:05:00.004-04:00

Rick James v. UMG Recordings, No. 11-1613 (related case No. 11-2431) (N.D. Cal. filed Nov. 1, 2011) (Doc. 34).

Plaintiffs in two related cases filed putative nationwide class actions against UMG Recordings, Inc. Plaintiffs seek to represent a class of recording artists, music producers, and other royalty participants. The complaints allege that UMG has failed to properly account for and pay its recording artists and music producers for income it has received, and continues to receive, from the licensees of its recorded music catalog for the sale of digital downloads and ringtones.

Defendants moved to dismiss for improper venue. The Court concluded that under the circumstances, it would be unreasonable to transfer the action based on the forum selection clause contained in a 1977 contract. "Assuming arguendo that the forum selection clause is valid and enforceable, that clause only governs the claims brought under the 1977 agreement. In analogous circumstances, courts have found it unreasonable to enforce a forum selection clause that applied to some but not all of the plaintiff’s claims."

Alternatively, defendant moved to transfer venue pursuant to 28 U.S.C. § 1404(a), contending

that the Central District of California is a more convenient venue. The primary dispute was whether transfer will serve the convenience of the parties and witnesses. The Court concluded that defendant had not met its burden that the case should be transferred.

Defendant also moved to dismiss plaintiffs’ claims under California Business & Professions Code

§ 17200. In both cases, plaintiffs allege that UMG knowingly breached its contracts with recording artists and music producers, and that “UMG either knew, recklessly disregarded, or should have known that its collection of income from Music Download Services and Mastertone Providers was in connection with a license agreement and the royalties payable to Plaintiff and the Class should have been accounted for and paid on that basis.” The Court concluded that plaintiffs stated a claim under § 17200, and that the questions raised by defendants’ motions are better suited for determination on a full factual record (i.e., at summary judgment).

Lastly, a third-party ("The Tubes") sought to intervene. The Court denied the motion because the proposed intervenors assert claims “parallel” to those already pending before the Court, and thus their interest are already represented. "If plaintiffs in these cases, who the Court notes are represented by the same counsel as The Tubes, believe that The Tubes should be added

as a class representative, plaintiffs may seek to amend the complaints."

Example Of "Public Performance" Complaint Against Radio Station

2011-10-26T10:27:00.004-04:00

MPCA King Of Spades, et al. v. T.E.C. 2 Broadcasting, Inc. et al., Index No. 1:11-cv-0080-JPJ-PMS (W.D. Va. filed Oct. 24, 2011).

Plaintiffs are affiliates of SESAC, a performing rights society, and seek injunctive relief and damages for defendants' allegedly unauthorized public performances of plaintiffs' copyrighted musical compositions on defendants' owned and operated commercial radio station.

Black Eyed Peas "Boom" Not "Substantially Similar"

2011-10-25T16:06:00.003-04:00

Batts, et al. v. Adams, et al., No. 10-cv-8123 (C.D. Cal. filed Oct. 21, 2011) [Doc. 251].

Plaintiffs allege that the Black Eyed Peas' Grammy-nominated song "Boom Boom Pow" infringed Plaintiffs' copyright in the song "Boom Dynamite." On defendants' motion for summary judgment, the court employed the "extrinsic test" to determine substantial similarity of the two songs. The Court held that the allegedly protectable elements in Plaintiffs' song (the hooks, and use of the phrase "I got that" followed by the repeated used of the word "boom") were not substantially similar to the elements of the Black Eyed Peas song. Also, the Court held that the non-protectable elements of Plaintiffs' song were not entitled to copyright protection. Accordingly, the Court concluded that as a matter of law the defendants were entitled to summary judgment.

Duke Ellington's Foreign Royalties Claim Dismissed Under Plain Language Of 1961 Contract

2011-10-21T08:18:00.005-04:00

Ellington v. EMI Music Inc., 651558/2010, NYLJ 1202519466664 (printed Oct. 21, 2011), at *1 (Sup. Ct., N.Y. Co. decided Oct. 2011).

This is action for breach of a songwriter royalty agreement, fraud, and a declaratory judgment. Defendant EMI moved to dismiss the complaint.

Plaintiff Paul M. Ellington, the heir and grandson of the legendary jazz composer and performer Edward Kennedy "Duke" Ellington, sought to recover foreign music publication royalties allegedly owed to him by defendants pursuant to contract dated December 17, 1961 (the 1961 contract). Ellington also sought to commence a class action against defendants on behalf of a putative class consisting of all persons to whom defendants have failed to pay their full contractual share of foreign publication royalties.

Pursuant to the 1961 contract, the First Parties transferred to the Second Party the copyrights to numerous identified musical compositions written by Duke Ellington between 1927 and the contract date, in exchange for, inter alia, payments of cash and royalties, calculated as a percentage of various sources of income, including income generated from sales outside the United States. The 1961 contract superceded a series of similar agreements between Duke Ellington and Mills Music or certain of its affiliates.

There was no real dispute that the 1961 contract is a "net receipts" songwriter royalty agreement. A "net receipts" agreement, common in the music industry prior to the early 1980s, provides for the payment of royalties to the songwriter on a net receipts basis, or, payment based on the net income received by the United States publisher from foreign subpublishers, who retain a percentage of the foreign income as a fee in payment for their services in exploiting and administering publication of the songs outside the United States.

The Court held that the 1961 Contract was clear and unambiguous. ""The royalty payment provision terms demonstrate that the 1961 contract is a net receipts royalty agreement that requires Mills Music, now EMI Mills, to pay Duke Ellington, now Ellington, one half of the 'net revenue actually received by the Second Party' from the 'foreign publication' of the songs falling within the scope of the contract." The Court rejected plaintiff's argument that the 1961 contract was a "at source" agreement, i.e., an agreement for payment of royalties earned worldwide calculated on the amount of income earned in the foreign territories at their source, rather than on the portion of that income received by the United States publisher. In sum, the 1961 contract permited defendants to employ the very method of royalty calculation of which Ellington now complains. Motion to dismiss granted.

Label Fails To State Copyright Claim; Leave To Amend Granted

2011-10-19T10:29:00.004-04:00

Tufamerica, Inc. v. The Orchard Enterprises, Inc., No. 1:11-cv-01816 (S.D.N.Y. filed Oct. 18, 2011) [Doc. 16].

Plaintiff is the owner of the record label Tuff City Music Group and owns the rights to thousands of musical recordings and compositions. In September 2006, TufAmerica licensed defendant's predecssor the right to market a large number of musical tracks by way of digital downloads (the “License”). The License obligated defendant's predecessor to pay TufAmerica various types of payments in exchange for digital distribution rights to hundreds of songs. In late 2007, defendant assumed its predecessor's obligations under the License. While TufAmerica received various payments from Digital and Orchard, it never received any payment of mechanical royalties.

Defendant argued that the License preempted plaintiff's copyright case. The Court agreed:

TufAmerica fails to state a facially plausible claim under the Copyright Act because it concedes that its copyright claim is governed by the License, not the Copyright Act. While TufAmerica subsequently argues that the License does not govern mechanical royalties, a “claim for relief ‘may not be amended by the briefs in opposition to a motion to dismiss.’” As a result, Orchard’s motion to dismiss is granted.

Because TufAmerica’s claim under the Copyright Act was dismissed, the court lacked pendent jurisdiction over the New York State common law claim of unjust enrichment.

However, because the License did not unambiguously preempt a claim under the Copyright Act's compulsory license provision, leave to amend the Complaint was granted.

Florida Long Arm Statute Examined In Copyright Case

2011-10-17T12:24:00.003-04:00

Wishfire Enterprises, LLC v. Dancing Ferret Discs, Inc. Index No. 4:11-cv-00092-RH-WCS (N.D. Fla. filed 10/12/11) [Doc. 30].

This is a copyright-infringement and breach-of-contract case. The plaintiff The Cruxshadows is a band that records music and has had three number-one hits. The plaintiff Virgil R. Du Pont, III, is the band‟s lead member. T he other plaintiffs are a limited liability company and corporation that market the band's music under a license from the band or its lead member. All are based in Florida. The defendants moved to dismiss for failure to state a claim on which relief can be granted and lack of personal jurisdiction. The Court denied the motion.

The defendant Dancing Ferret Discs, Inc., has a record label and distributes music throughout the United States, including in Florida. Dancing Ferret' s principal place of business is in Pennsylvania. Citing Fla. Stat. § 48.193 (2010) and Cable/Home Communications Corp. v. Network Productions, Inc., 902 F.2d 829, 856-57 (11th Cir. 1990), the Court held that Florida's long-arm statute establishes jurisdiction when a nonresident transmits material into Florida that infringes a Florida resident‟s copyright. "[C]opyright infringement in Florida, though initiated from elsewhere, subjects the infringer to jurisdiction in Florida..."

Karaoke Damages Limited On Per "Work" Basis

2011-10-06T10:08:00.003-04:00

Sony/ATV Music Publishing LLC v. D.J. Miller Musict Distributors, Inc. et al., Index No. 3:09-cv-01098 (M.D. Tenn. filed Oct. 5, 2011).

Plaintiffs allege that they are the owners/administrators of music copyrights in numerous original music compositions. Plaintiffs further allege that since at least early 2006, all of the named defendants had been participating in the manufacture, reproduction, distribution, advertising, promotion and offering for sale of illegal and unauthorized copies of Plaintiffs’ music compositions in the form of karaoke recordings in various formats for discs and Internet downloads.

The Defendants argue that Plaintiffs seek damages beyond what is permitted under the Copyright Act because they seek damages on a per infringement basis and not a per work basis. The Defendants allege that Plaintiffs are improperly seeking 1,406 statutory awards because the lists annexed to the complaint of allegedly infringing songs contain many duplicate listings of songs; Defendants argue that, once these duplicate listings are removed, there are only 448 “works” for which Plaintiffs could be able to recover statutory awards.

The Court agreed with Defendants. "The plain language of the Copyright Act indicates that a single statutory award is appropriate for all infringements related to a single copyrighted work". Motion granted.

6th Circuit Rules On Copyright Issue

2011-09-26T09:56:00.003-04:00

Severe Records, LLC v. Rich et al., No. 09-6175 (6th Cir. Sep. 23, 2011).

Plaintiff Mark Christopher “Chris” Sevier authored a song entitled “Better.” Defendant Shanna Crooks recorded the song and, because they were pleased with the results, they co-authored and recorded a second song, “Watching Me Leave.” Their relationship then collapsed, Crooks signed as a recording artist with unrelated recording and management companies, and various

accusations and altercations followed, precipitating this action. Sevier and his recording company, Severe Records, LLC (collectively, “Plaintiffs”) filed suit, alleging what Sevier characterized as a “novel” claim of copyright infringement against Crooks and

others for preventing Plaintiffs from commercially exploiting the two songs through threats contained in cease-and-desist letters and requests to music retailers that the songs not be offered for sale. Plaintiffs also sought a declaratory judgment regarding the authorship of the songs and ownership of the copyrights to the two songs. The district court dismissed the amended complaint for failing to state a claim of copyright infringement and declined to consider Plaintiffs’ pendent state law claims or issue a declaratory judgment. The 6th Circuit affirmed the district court’s dismissal of the copyright infringement claim and reversed its dismissal of the

declaratory judgment claim.

There is no allegation anywhere in the amended complaint that Crooks did anything with the musical composition “Better” other than utilize the sound recording that she and Sevier created and that she was admittedly permitted to use for commercial or non-commercial gain. Indeed, Plaintiffs conceded in paragraph 735 of their amended complaint that “[t]he Defendants did not engage in unauthorized copying, but rather, their actions prevented Plaintiffs from copying.” That ends the inquiry; no claim for copyright infringement was properly alleged. Plaintiffs’ allegation that “Crooks attempted to transfer and did transfer an interest in the composition ‘Better’, [sic] which she did not own, to the Rich Defendants” is not the same thing as creating an improper copy of “Better.” We read nothing in the plain language of the Copyright Act, 17 U.S.C. § 106, to suggest that such a transfer constitutes copyright infringement. We expressly decline Plaintiffs’ invitation to grossly expand copyright infringement causes of action to include any acts that create barriers to a copyright holder’s ability to fully exploit that copyright.

Judge Reduces TM Jury Verdict Award To Hendrix

2011-09-26T09:38:00.006-04:00

Experience Hendrix, LLC v. Hendrixlicensing.com, Ltd. et al., No. 2:09-cv-00285 (W.D. Wash. filed Sep. 21, 2011) [Doc. 160].

Plaintiffs own various tradmarks incorporating Jimi Hendrix's name, image, signature, song titles and/or lyrics. Defendants used one or more of these federally registered markes on products bearing Hendrix's image or art he created. The case proceeded to trial on three issues: damages for trademark infringement, defendants' liability for violation of Washington's Consumer Protection Act, and upon a finding of liability, actual damages for the consumer protection violation. After trial, the jury deliberated and rendered a verdict in favor of plaintiffs awarding, on the infringement claim, actual damages of $306,650 and defendants' profits of $60,000.

The Court concluded that the evidence, when construed in the light most favorable to plaintiffs, permitted only one reasonable conclusion, which was contrary to the jury's verdict concerning lost profits. "Having entirely failed to carry their burden proving expenses, plaintiffs are not entitled, as a matter of law, to an award of lost profits."

The Court further concluded that the jury's awards for injury to reputation and injury to goodwill were contrary to the Court's instructions and unsupported by the evidence.

The Court denied plaintiffs' motion for attorney fees under the Lanham Act in light of defendants' overall success and lack of bad faith. However, Plaintiffs were entitled to attorneys fees under the state consumer protection claim -- which the Court limited to $50,000 (or 10% of the amount requested by Plaintiffs).

Lastly, the Court entered a limited permanent injunction.

Copyright Case Dismissed Against 50 Cent Over Crime Story/Book

2011-09-23T10:00:00.004-04:00

Winstead v. Jackson, et al., No. 2:10-cv-05783 (D.N.J. Sept. 20, 2011) [Doc. 45].

In this copyright infringement action, Plaintiff alleges that Defendants’ movie and companion album, both entitled Before I Self Destruct, infringe upon Plaintiff’s copyright in his book, The Preachers Son - But the Streets Turned Me Into a Gangster. Plaintiff is the author and sole owner of the copyright for the Book. Plaintiff alleges that Defendants infringed upon the

Plaintiff contends derive their content from the Book.

The Court granted defendants' motion to dismiss for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). Plaintiff avers that the film duplicates the generalized theme and story

of the book and amounts to actionable copying. "However, general plot ideas and themes lie in

the public domain and are not protected by copyright law." Continuing:

There is no doubt that the Book and Film do share similar characters, themes, as well as a similar setting. However, this s haring of common features is only natural since both works feature a protagonist who has a difficult upbringing and turns to a life of violence and street crime, a story which has long ago been part of the public domain and which has been the subject of numerous movies and television shows. Thus, both works may properly contain gang life in inner-city New Jersey, characters spending time in jail, the search for an ex-girlfriend upon release from prison, making love in the shower, obtaining money through criminal activity, purchasing fancy clothes and accessories with the proceeds of crime, shoot-outs, murder, and the loss of a parent.

The Court further held that commonly used words, phrases and cliches used in both the book and movie/album are not protectable. Also, Plaintiff's state common law claims were pre-empted by the Copyright Act.

Lastly, because the Court held that Defendants did not infringe on Plaintiff’s copyright, Plaintiff’s claims of vicarious and contributory infringement fail since they hinge on a preliminary finding of direct infringement.

Statutory Damages Awarded To EMI For Willful Infringement

2011-08-31T09:58:00.004-04:00

EMI Entertainment v. Karen Records, Inc. et al, No. 1:05-cv-00390 (S.D.N.Y. filed Aug. 26, 2011) (Holwell, J.) [Doc. 110 Memorandum Opinion and Order].

The court found that defendants willfully infringed EMI's copyrights in the four musical compositions at issue and awarded EMI $25,000 for infringement of each composition (total $100,000) for which all defendants -- corporate and individual -- shall be jointly and severally liable.

The Court had previously granted EMI summary judgment on liability as to sales on or after January 14, 2002 of albums containing the four musical compositions. 603 F. Supp.2d 759 (SDNY 2009). Now, the Court analyzed EMI's statutory damages request and found that defendants infringement was willful based on defendants industry experience and copyright ownership, prior lawsuit regarding similar practices and a specific warning. The next step was determining the amount of damages ($25,000 per work) and then analyzing whether the individual defendants should be jointly and severally liable. They were because they had the right and ability to supervise the infringing activity and a direct financial interest in such activities.

Zappa v Rykodisc Decision

2011-08-25T14:43:00.001-04:00

Gail Zappa v. Rykodisc, Inc., 08 Civ. 396 (WHP), NYLJ 1202512134305, at *1 (S.D.N.Y. decided August 17, 2011)

Summary Judgments In MP3Tunes Case

2011-08-25T12:44:00.008-04:00

Capitol Records, Inc. v. MP3Tunes, LLC, 1:07-cv-09931-WHP (S.D.N.Y. filed 8/22/2011) [Doc. 267].

"This case turns in large part on whether MP3tunes is eligible for protection under the safe harbors created by the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512."

The Court addressed Plaintiff's argument that MP3tunes failed to reasonably implement a repeat infringer policy. The court distinguished between "blatant infringers" and users who merely consume the content and found "this applies to MP3tunes executives." There was no evidence that executives or employees had firsthand knowledge that websites linked on the sideload.com website were unauthorized. Additionally, MP3tunes did nor purposefully blind itself to its users' identities and activities, and had a procedure for responding to DMCA takedown notices.

The Court next addressed MP3tune's compliance with Plaintiff's take-down notices. The court found that MP3tunes was obligated to remove specifice works traceable to users' "lockers" and that MP3tunes interpreted the reach of Plaintiff's notices too narrowly. However, MP3tunes was not obligated to take down all of Plaintiff's cotnent because the notices provided a representative list. Plaintiff had to provide sufficient information --additional web addresses -- for MP3tunes to locate other infringing material. "Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers."

The Court next addressed actual or "red flag" knowledge of infringement. The Court found that MP3tunes "undoubtedly...is aware that some level of infringement occurs. But there is no genuine dispute that MP3tunes did not have specific 'red flag' knowledge with respect to any particular link...other than the URLs noticed [in the DMCA takedowns]."

The Court next addressed defendant's benefit and control of infringing activity, finding "at worst, MP3tunes set up a fully automated system where users can choose to download infringing content."

In sum, MP3tunes could claim safe harbor protection for plaintiff's works stored on and linked to on the websites. However, MP3tunes did not qualify for safe harbor protection for songs identified in takedown notices which it failed to remove.

The Court then turned to whether MP3tunes is secondarily liable for storing material at the direction if its users. The court found that MP3tunes knowledge of the unauthorized use of infringing material "is manifest." "Accordingly, [Plaintiff's] motion for summary judgment on its claim for contributory infringement with respect to the songs listed in [Plaintiff's] takedown notices and which MP3tunes failed to removed from users' lockers is granted."

The Court next turned to direct infringment. Plaintiff motion with respect to songs downloaded by employees was denied because there was a dispute as to whether the songs were downloaded by employees in the course of their employment. On the other hand, an individual named defendant was directly liable for the songs personally "sideloaded" from unauthorized sites.

"Hey Micky!" Malpractice Action Survives Dismissal

2011-08-22T11:02:00.003-04:00

Basilotta v. Warshavsky, 115524/09, NYLJ 1202511322101, at *1 (Sup.Ct., N.Y. Co., decided August 2, 2011)

The singer of the 1980's hit song that starts "Oh Micky you're so fine, you're so fine you blow my mind! Hey Mickey!" can proceed with her malpractice action against an attorney she claims failed to diligently protect her rights to the song. The Court found that the suit was not time barred.

Transfer To Florida Appropriate Where Only Connection To New York Is Internet Access

2011-08-12T06:52:00.003-04:00

Caldwell v. Slip-N-Slide Records, Inc., 10 Civ. 9106 (JFK), NYLJ 1202510748971, at *1 (SDNY, Decided July 26, 2011).

The Court granted defendants' motion to transfer to federal court in Florida, pursuant to 28 USC 1401(a). "Plaintiff brings this suit in New York under the theory that the allegedly infringing song was distributed in New York over the Internet, including through YouTube and iTunes. As the only apparent connection to this forum is the distribution of "Bond Money" over the Internet, a fact which would support venue in any district court in this country, Plaintiff's choice of forum is entitled to little weight."

Plaintiff alleged that in 2001 he created the musical composition and sound recording of a song entitled "Dim Hits," which he later registered with the United States Copyright Office. In 2004, Plaintiff gave a copy of "Dim Hits" to a vocalist known as Trina, who has a recording contract with the Defendants. In 2008, Plaintiff discovered that the Defendants had allegedly copied "Dim Hits," without his permission, and incorporated it into a song titled "Bond Money." Plaintiff also alleges that the Defendants have distributed "Bond Money" on several albums, web sites, and other outlets throughout the United States.

None of the parties demonstrated ties to New York. Plaintiff was a resident of Charlotte, North Carolina. Defendant corporation was a Florida corporation that "promotes, develops, markets and manages recording artists," with its principal place of business and sole office in Miami Beach, Florida. The song "Bond Money" was purportedly written and recorded in Florida. Individual defendants were a Florida and Georgia resident. Another corporate defendant was a Phoenix, Arizona limited liability company.

Black Keys' Sue Over Commercial

2011-07-19T09:42:00.001-04:00

Dan Auerbach; Patrick Carney dba McMoore McLessT Publishing v. Della Femina/Rothschild/Jeary Partners; Della Femina & Gianettino Inc.; Valley National Bancorp; Valley National Bank, Index No. 1:11 CV 4902 (S.D.N.Y. filed 7/15/2011).

The Black Keys (in the author's opinion, the pride of Akron, Ohio!) bring a copyright infringement action for defendants' unauthorized use of their song "Tighten Up" in a television commercial. Plaintiffs allege defendants incorporated significant portions of the copyrighted recording without first obtaining plaintiffs' consent or a license.

Attorney's Fees Denied In Copyright Case

2011-06-27T13:24:00.003-04:00

Canal+ Image UK Ltd. v. Lutvak, 10 Civ. 1536 (RJH), NYLJ 1202498072915, at *1 (SDNY, Decided June 8, 2011).

The Court had previously dismissed the action for copyright infringement and breach of contract. Defendants, a lyricist and a songwriter, moved pursuant to Federal Rule of Civil Procedure 54(d)(2) for an award of attorney's fees under the Copyright Act, 17 U.S.C. §505. The Court denied the motion.

Artist Has Label's Claims Dismissed; Judgment On Counterclaims

2011-06-27T13:13:00.002-04:00

Alistair Records, Inc., v. Adams, 603695/09, NYLJ 1202497369670, at *1 (Sup., NY, Decided May 20, 2011).

Defendant recording artist's motion for an order amending the caption to reflect the correct name of plaintiff record label, "Alistair Records, LLC" is granted. Defendant artist's motion for entry of a default judgment on his breach of contract counterclaim against plaintiff label is granted ($6,000). Artist's motion for entry of a default judgment on his counterclaim for rescission is denied and that counterclaim is severed and dismissed. Artist's remaining counterclaims continue.

Artist's motion for summary judgment dismissing the complaint (seeking injunction and $750,000) is granted. Record label failed to submit any evidentiary facts to controvert the claims in artist's motion.

Manager's Suit Against Band Not Stayed By Parallel State Proceeding

2011-06-09T12:44:00.006-04:00

Tramposch v. Winter, 10 Civ. 8286 (TPG), NYLJ 1202496374985, at *1 (SDNY, Decided May 25, 2011).

Plaintiff brought an action for breach of contract, unjust enrichment, etc. Plaintiff was the manager of the band "Red Jumpsuit Apparatus" until the band terminated the relationship in January 2010. According to plaintiff, prior to his termination, he and the band had a series of disputes regarding payment of commissions and repayment of loans made by plaintiff to the band. Defendants, members of the band, moved to stay the action pending resolution of a parallel proceeding brought by defendants against plaintiff in California. The Court denied the motion.

Plaintiff was not served with the complaint in the California state proceeding until AFTER he had commenced the Federal proceeding in New York (diversity jurisdiction). The Court found that there was no basis to abstain from hearing the federal case.

Bay City Rollers' Royalty Suit Not Time-Barred

2011-06-06T09:32:00.003-04:00

Faulkner v. Arista Records LLC, 07 Civ. 2318 (LAP), NYLJ 1202495926616, at *1 (SDNY, Decided May 23, 2011).

Plaintiffs, all former members of 1970s-era musical group the Bay City Rollers, brought this action alleging that they were owed tens of millions of dollars in unpaid royalties from their record company, Defendant Arista Records, LLC ("Arista"). Plaintiffs claim these royalties pursuant to a 1981 agreement; accordingly, Arista argues that even if it owes Plaintiffs accrued royalties from the time period prior to 2001, the statute of limitations bars Plaintiffs' claim. Plaintiffs counter that Arista acknowledged its debt in a writing, thereby satisfying Section 17-101 of New York's General Obligations Law, which restarts the statute of limitations to revive the debt.

Section 17-101 of New York's General Obligations Law ("Section 17-101") codifies and restricts the common-law rule that an acknowledgement of a debt is sufficient to refresh the obligation, thereby restarting the running of the statute of limitations. To restart the running of the statute of limitations under Section 17-101, an acknowledgment or promise must be in writing, be signed by the debtor party, recognize an existing debt and contain nothing inconsistent with an intention on the part of the debtor to pay it.

Plaintiffs and Arista have each moved for partial summary judgment on Arista's affirmative defense that the statute of limitations bars Plaintiffs' claim. The Court granted Plaintiffs' motion for partial summary judgment, and denied Defendant's motion for partial summary judgment.

LimeWire Settlement

2011-05-13T13:54:00.000-04:00

http://www.digitalmusicnews.com/stories/051211limewire

"Limewire and the four major labels have now reached an out-of-court settlement for $105 million, according to information confirmed by the RIAA"

Copyright Case Dismissed As Time Barred

2011-05-02T15:35:00.003-04:00

Brand v. RMM, Universal Music Group, NYLJ 1202491912221, at *1 (SDNY, Decided April 18, 2011).

Plaintiff sued alleging that defendants infringed the copyright to his rap vocals by adding them to a song by recording artist Tito Nieves. The Court granted defendant's motion for summary judgment -- the claim was time-barred.

Plaintiff alleged that defendant infringed his copyright when it "used, sold and manufactured without his permission his rap vocals." Although styled as an infringement claim, the gravamen of Plaintiff's complaint is that he is the owner of the rap lyrics on Nieves' song.

The Court cited cases that a claim involving a dispute over copyright ownership accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised. A defendant's express assertion of adverse ownership or a plain and express repudiation of plaintiff's ownership such as registering the copyright in defendant's own name, distributing the work with copyright notice identifying defendant as the owner, or exploiting the work for years without paying royalties to plaintiff will trigger the accrual of the statute of limitations. If a plaintiff does not sue within three years from the date his copyright claim accrues, his complaint is time-barred. 17 U.S.C. §507(b).

In this case, the song was first released in 1991. The back of the CD cover listed defendant as the copyright owner. The song was released again in 1997 on another CD, which also listed defendant as the copyright owner on the back cover. Plaintiff never received royalties from either CD. The Court held that given this history, Plaintiff reasonably should have know of the injury upon which his claim was premised by 1991 or at the latest by 1997, thirteen years before he filed the complaint. Because Plaintiff's ownership claim was time-barred, his infringement claim also failed as a matter of law.

Plaintiff Cannot Swap Election Of Statutory Damages

2011-04-19T09:49:00.001-04:00

Arista Records LLC v. Lime Group LLC, NYLJ 1202490027721, at *1 (SDNY, Decided April 11, 2011)

The Court finds that Defendants would be unduly prejudiced if Plaintiffs were permitted to amend their election of remedies under the Copyright Act, just one month before trial. Accordingly, Plaintiffs may not seek to recover actual damages for those sound recordings with respect to which they have already elected to recover statutory damages.

"Work" Defined For Statutory Damages Against Limewire

2011-04-18T07:33:00.003-04:00

Arista Records LLC v. Lime Group LLC, 06 CV 5936 (KMW), NYLJ 1202489939713, at *1 (SDNY, Decided April 4, 2011)

The Court had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. The litigation is now in the damage phase, with a trial on damages scheduled. Plaintiffs identified approximately 11,205 sound recordings that had allegedly been infringed through the LimeWire system. Of those, approximately 9,715 are sound recordings as to which Plaintiffs have elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.

On March 10, 2011, the Court held that Plaintiffs are entitled to a single statutory damage award from Defendants for each "work" that was infringed by a direct infringer on the LimeWire system. The parties now seek a resolution of a threshold legal dispute regarding what constitutes a "work" as to which Plaintiffs can recover a statutory damage award.

The Court holds that both an album, and a sound recording that Plaintiffs issued as an individual track may constitute a "work" infringed. Accordingly, Plaintiffs are entitled to a statutory damage award for each sound recording that was infringed on the LimeWire system during the time period that Plaintiffs made that sound recording available as an individual track. However, for those sound recordings that Plaintiffs issued only as part of an album, Plaintiffs can recover only one statutory damage award for that album, not for each individual sound recording.

Claims Dismissed In Aretha Contract Suit

2011-04-12T10:24:00.003-04:00

BLD Productions, LLC v. Viacom, Inc., NYLJ 1202489492977, at *1 (SDNY, Decided March 31, 2011) (Gardephe, J.)

Summary: Plaintiff and defendant Viacom's affiliate negotiated a March 8, 2001, agreement for a benefit concert by Aretha Franklin. On April 10, 2001, Franklin granted plaintiff her rights to video and audio recordings of the concert. Despite the agreement's March 8, 2001, date and the concert's April performance, plaintiff claimed that the agreement was not finalized until 2006. Plaintiff alleged breaches of oral and written contract, and the implied duty of good faith and fair dealing, contending that Viacom and its affiliate failed to engage a distributor to make, market and distribute recordings of the concert, their failure to account for sales and revenues and to pay royalties to plaintiff.

Judge Gardephe dismissed the case against Viacom because it was not a party to the agreements, and plaintiff did not plead sufficient facts to pierce the corporate veil. Judge Gardephe also dismissed claims against Viacom's affiliate to the extent that plaintiff's breach of written contract claim were based on the affiliate's failure to provide master recordings to plaintiff. Plaintiff's claim that the agreement required the affiliate to secure a distributor was deemed time-barred by the New York statute of limitations. Judge Gardephe alsor dismissed plaintiff's claim for breach of an oral contract.

Copyright Royalty Board Final Rule

2011-03-21T14:51:00.002-04:00

37 CFR Part 380: Digital Performance Right in Sound Recordings and Ephemeral Recordings;

Final Rule. The Copyright Royalty Judges announced their final determination of the rates and terms for two statutory licenses, permitting certain digital performances of sound recordings and the making of ephemeral recordings, for the period beginning January 1, 2011, and ending on December 31, 2015. (Effective Date March 9, 2011).

For example, a Commercial Webcaster will pay a royalty of: $0.0019 per performance for 2011; $0.0021 per performance for 2012; $0.0021 per performance for 2013; $0.0023 per performance for 2014; and $0.0023 per performance for 2015. Depending on the number of "tuning hours," a Noncommercial Webcaster will pay an annual per channel or per station performance royalty of $500 in 2011, 2012, 2013, 2014, and 2015; or, $0.0019 per performance for 2011; $0.0021 per performance for 2012; $0.0021 per performance for 2013; $0.0023 per performance for 2014; and $0.0023 per performance for 2015. (Section 380.3).

Who Owns A Grammy?

2011-03-21T12:55:00.001-04:00

National Academy of Recording Arts & Sciences Inc. v. Gotta Have It! Collectibles Inc. dba Gotta Have and Roll.com, No. 11-103366 (Sup. Ct. NY. Co. filed 3/18/11) -- summons with notice for conversion of the Grammy Award Statuette awarded to Stevie Wonder for Songwriter of the Year (1973).

LimeWire Damages in Trillions "Absurd"

2011-03-15T08:13:00.003-04:00

Arista Records LLC v. Lime Group LLC, 06 CV 5936, NYLJ 1202486126807 (S.D.N.Y. Mar. 10, 2011)

The Court already had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced Multiple users of the Lime Wire online file-sharing program ("Lime Wire") to infringe Plaintiffs' copyrights. The litigation is in the damage phase.

Plaintiffs identified approximately 11,000 sound recordings that they allege were infringed through the Lime Wire system. For the over 9,500 post-1972 sound recordings, Plaintiffs elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.

"Squarely before the Court is a threshold dispute regarding Plaintiffs entitlement to statutory damage awards against Defendants: Where, as here, Defendants have been found liable for inducing numerous individual Lime Wire users infringe Plaintiffs' copyrights, may Plaintiffs recover from Defendants a separate statutory award for each individual's infringement of a work as to which Defendants are jointly and severally liable? Or, rather, are Plaintiffs limited to one statutory damage award per work from Defendants, regardless of the number of direct infringers of that work with whom Defendants are jointly and severally liable?"

The Court held that Plaintiffs were entitled to a single statutory damage award from Defendants per work infringed.

If one multiplies the maximum statutory damage award ($150,000) by approximately 10,000 post-1972 works, Defendants faced a potential award of a billion dollars in statutory damages alone. If Plaintiff's were able to pursue a statutory damage theory predicated on the number of direct infringers per work, Defendants' damages could reach into the trillions. As Defendants noted, Plaintiffs were suggesting an award that is "more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877." This result is absurd, the Court found.

In sum, the Court found that the most plausible interpretation of Section 504(c) is one that authorizes only a single statutory damage award per work against a secondarily liable defendant, particularly in the context of the mass infringement found in the context of online peer-to-peer file sharing. Accordingly, the Court held that Plaintiffs were entitled to a single statutory damage award from Defendants per work infringed, regardless of how many individual users directly infringed that particular work.

Trademark Plaintiff Denied Infringement Damages

2011-03-10T07:40:00.007-05:00

Rodgers v. Wright, 04 Civ. 01149 (RJH), NYLJ 1202484847172, at *1 (SDNY, Decided March 1, 2011)

Judge Holwell holds (1) plaintiff is not granted damages; (2) plaintiff is not granted attorneys' fees; and (3) the permanent injunction need not be modified.

Plaintiff Nile Rodgers, a founder of the music group Chic, brought the trademark infringement action against two singers who once performed as part of Chic, defendants Norma Jean Wright and Luci Martin. Rogers is the owner of a registered trademark in "Chic," and, along with his late partner Bernard Edwards, has exploited the mark in commerce continuously since 1977. Wright and Martin claimed no ownership of the mark, but had performed in the United States and abroad as "Ladies of Chic" and "Original First Ladies of Chic," and sometimes simply as "Chic." The Court previously found (1) that plaintiff's mark was protectable; (2) that defendants' uses of "Chic," "Ladies of Chic," and "Original First Ladies of Chic," were likely to cause confusion; (3) that defendants could not establish a fair use defense; and (4) that any relevant injunction should have extraterritorial effect. Thereafter, the Court permanently enjoined defendants and each of their agents, servants, employees, attorneys, and persons in active concert or participation with them from using or commercially exploiting the word "Chic" anywhere in the world, generally and specifically in connection with concert promotion, publicity, and performance; and also established other restrictions.

Plaintiff sought defendants' profits under Section 35 of the Lanham Act. The Court concluded that plaintiff had failed to establish that defendants acted with willful deception, and therefore that plaintiff was not entitled to an award of profits. "Having not presented any evidence of willfulness, and as it appears that defendants' actions were not willful, awarding damages in this case would be inappropriate."

Plaintiff also sought attorneys' fees. The Court denied the motion because plaintiff failed to show oppressive litigation tactics or bad faith.

Right Of Publicity In Washington State Hendrix Case

2011-03-09T17:53:00.004-05:00

Experience Hendrix, LLC v. Hendrixlicensing.com, Ltd., No C09-285Z (W.D. Wash. Feb. 8, 2011). Decision here.

Washington State enacted a law that rights of publicity do not expire upon the death of the individual. Defendants distribute merchandise bearing Jimi Hendrix's likeness, accompanied with his name. If applied in the litigaiton, the statue would deem all rights to the use of Jimi Hendrix's name, voice, signature, photograph, or likeness in plaintiff (as assignee of Hendrix's intestate heir). Such result would preclude defendants, absent plaintiff's consent, from commercially distributing images of Jimi Hendrix, at least in the State of Washington.

Although plaintiff sought to avoid the "constitutional thicket" concerning the Washington statute by not pleading a cause of action thereunder, the Court held that plaintiff's allegations implicate the right of publicity. Thus, plaintiff could not avoid "the fundamental issue in this case, namely whether [the statue] " had the effect of vesting in [plaintiff] any right of publicity relating to JImi Hendrix such that [plaintiff] may preclude defendants from trading in images of, or art created by, Jimi Hendrix."

In analyzing the constitutionality of the statute, the Court noted that the statute purports to govern whether a right of publicity exists, whether it continues post-mortem, and how it may be transferred during life and after death, regardless of where the particular individual or personality is or was domiciled. The Court held that the statute violated the Due Process and Full Faith and Credit clauses of the Constitution and consequently, under New York law, plaintiff had no publicity rights. The court stressed that the statute purports to govern advertising and fundraising activities everywhere. Also, under the Due Process Clause, to apply its own law, Washington must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. The Court held that applying Washington law to the issue of descendbility was arbitrary and unfair because the domicile at death has substantial relevant contacts.

The court also found that application of the Washington statute would cause forum shopping by having plaintiffs divert sales to Washington, and would require users of the rights (potential defendants) to attempt to restrict commercial activity to avoid application of the statute. Applying the domicile-at-death rule would avoid these problems and provide certainty.

Spanish Language Adapter Loses Suit Against Coke

2011-03-07T10:04:00.004-05:00

Vergara Hermosilla v. Coca-Cola Co., No. 10-21418 (S.D. Fla. Feb. 23, 2011). Decision here.

Plaintiff was hired by Coca Cola to adapt a song into Spanish. Plaintiff requested an "adapter's share." During a telephone call with defendant, Plaintiff agreed to relinquish any copyright interest in the work. In an email later that day, Plaintiff wrote "For the adaptation, you may consider it a work for hire with no economic compensation to that respect. I believe what's legal is a dollar."

The Court granted Defendant's motion for summary judgment. Relying on section 204 of the Copyright Act, the Court held that Plaintiff's copyright interest -- the adapted lyrics -- was conveyed by a signed writing (the email). An irrevocable agreement was reached, so that later communications between the parties concerning a written contract that differed from the parties' agreement did not alter the parties' actual agreement. "Therefore, because Coca Cola cannot be sued based on a copyright interest it owns, Coca Cola is entitled to summary judgment on all counts."

Article: Investors Drawn to Digital Music

2011-02-28T16:50:00.002-05:00

Article from the New York Times:

BUSINESS DAY

Investors Are Drawn Anew to Digital Music

By BEN SISARIO

Published: February 28, 2011

The explosion in smartphone apps has given investors and entrepreneurs optimism that the digital music business is poised to finally become profitable

Plaintiff's Award Reduced In Wu-Tang Suit

2011-02-15T12:00:00.004-05:00

Coles v Wu-Tang Prods., Inc., 2011 NY Slip Op 00789 (1st Dep't Feb. 10, 2011)

The appellate division modified the trial' court's award to plaintiff by 25% of the net royalty payments received by defendant Wu-Tang Productions.

The action was for the payment of royalties for musical compositions co-written by plaintiff. The Court found that the documentary evidence established that Wu-Tang was entitled to retain 25% of the net royalty payments it received from Careers-BMG Music Publishing, Inc. (BMG) before paying plaintiff his share. Pursuant to the agreement between plaintiff and Wu-Tang, plaintiff conveyed an undivided 50% percent interest in the copyrights in those compositions to Wu-Tang, and, with plaintiff's consent, Wu-Tang transferred 50% percent of its interest in the copyrights to BMG. Thus, Wu-Tang retained a 25% interest in the copyrights.

Additionally, the record supported the trial court's determination that plaintiff, as a lyricist of the compositions, and defendant producer of the music, regarded themselves as joint authors sharing equally in the ownership of a joint work. Thus, the court properly granted plaintiff leave to conform the complaint to the evidence presented at trial by adding a claim against the producer for his unauthorized receipt of a 50% producer's fee

Copyright Case Over Lil' Wayne Movie Dismissed

2011-02-14T15:26:00.003-05:00

Crump v. QD3 Entertainment, Inc., 2011 WL 446296 (S.D.N.Y. Feb. 8, 2011) (Jones, J.).

The lawsuit stems from the use of three copyrighted musical compositions in a documentary film entitled The Carter. The film focused on the life of Dwayne Carter, a hip hop and urban musical artist who is known by his stage name “Lil' Wayne.”

Defendants moved for summary judgment. As a procedural matter, the court focused on Plaintiff's failure: to oppose the filing of a motion for summary judgment pre-discovery, to file a Rule 56(f) affidavit, and to describe any potentially discoverable facts that make a motion for summary judgment premature.

In its legal analysis, the Court found that "the only issue is whether the agreement with another Young Money entity (Young Money Entertainment, Inc.) was sufficient to grant a nonexclusive license in the Defendants." The Court determined that the language of the subject agreement and uncontested facts clearly established that Defendants received a non-exclusive license to use any performance by Dwayne Carter of his copyrighted musical compositions, including “Pussy Monster,” “La La,” and “Lollipop.” In sum, Defendants met their burden of establishing that they received a grant of a nonexclusive license from Dwayne Carter and Young Money Publishing to use the three musical compositions at issue here in The Carter. The undisputed facts presented by both parties demonstrated that the clear intent of the parties was to grant the nonexclusive license. Summary judgment granted to Defendants.

Summary Judgment Motions Denied In Alleged Hip Hop Infringement

2011-02-10T11:45:00.004-05:00

Lessem v. Taylor et al., No. 07 Civ 10601(LLS), 2011 WL 344104 (S.D.N.Y. Feb. 3, 2011).

Plaintiffs moved for summary judgment that defendants' song "How We Do" infringes their copyrighted song "Elevator". (Defendants' song appears on the album "The Documentary" by hip-hop artist The Game.)

The Court analyzed defendants' access to the Plaintiff's work (specifically, through a third-party intermediary), the probative similarity of the two works (based on expert reports), the alleged improper appropriation, and whether or not defendants independently created their song. The Court determined that factual issues precluded summary judgment.

Music Photos Suit

2011-02-09T10:56:00.003-05:00

Lawrence Martin Temme v. Sony Music Entertainment, Index No. 11-650342 (Sup. Ct., N.Y. Co. filed 2/8/2011).

Complaint for negligence and conversion. Plaintiff, a freelance music photographer, alleges that over the course of his 20 years in the music industry, he has photographed some of the biggest names in popular music. Plaintiff alleges that the defendant has lost or converted thousands of valuable photographic images belonging to the Plaintiff. Plaintiff seeks $500,000 in damages based on the defendant's alleged breach of bailment, its negligence, and its conversion of the plaintiff's property.

Ramones Royalties Suit

2011-02-03T11:01:00.003-05:00

Christopher J Ward v. Ramones Production Inc. et al, Index 650291/2011 (Sup. Ct., NY Co. filed Feb. 2, 2011). Complaint for breach of contract. Plaintiff (known as "CJ Ramone") is a former member of the rock band The Ramones. Plaintiff seeks to recover royalty payments for musical compositions created by the Ramones. $600,000.

Napster Loses Indemnification Suit Against Label Over Mechanical Licenses

2011-02-02T11:35:00.006-05:00

Napster LLC v Rounder Records Corp., No. 09-cv-00318 (S.D.N.Y. decided Jan. 25, 2011).

The dispute is over whether Rounder, a record label, is contractually obligated to indemnify Napster for costs incurred due to copyright infringement lawsuits brought by the owners of musical compositions embodied in the sound recordings provided by Rounder. Napster contends that under two contracts, Rounder was required to procure mechanical licenses for use of the infringed musical compositions.

The court dismissed Napster’s claim based on the first contract because the contract was rescinded by the second contract, thereby extinguishing any claim Napster might have had for its breach. The court dismissed Napster’s claim based on the second contract (i) for Napster's failure to comply with its advance consent provision concerning indemnification; and (ii) it was not Rounder’s responsibility to procure mechanical licenses for the infringing compositions under the contract.

Motion to dismiss granted.

Downloads Not Public Performances; Fees Must Be Recalculated

2010-09-30T07:22:00.002-04:00

US v. American Society of Composers, Authors and Publishers, 09-0539-cv (L), NYLJ [web_id_#], at *1 (Court, Decided September 28, 2010) [LINK]

"This case presents two distinct questions that arise from the transmittal of musical works over the Internet: First, whether a download of a digital file containing a musical work constitutes a public performance of that musical work; and, second, whether the district court, acting in its capacity as the rate court, was reasonable in its assessment of the blanket license fees of Yahoo! Inc. and RealNetworks, Inc. (collectively, "the Internet Companies") to publicly perform any of the millions of musical compositions in the American Society of Composers, Authors and Publishers ("ASCAP") repertory.

For the reasons set forth below, we affirm the district court's ruling that a download of a musical work does not constitute a public performance of that work, but we vacate the district court's assessment of fees for the blanket ASCAP licenses sought by the Internet Companies and remand for further proceedings."

Bob Marley Recordings Are Works Made For Hire

2010-09-27T23:43:00.003-04:00

Fifty-Six Hope Road Music Ltd. v. UMG Recordings, 08 CIV. 6143 (DLC), NYLJ 1202472502152, at *1 (SDNY, Decided September 10, 2010)

"This dispute concerns the ownership of the renewal term copyrights in certain pre-1978 sound recordings embodying the performances of Jamaican reggae artist, Bob Marley (the "Sound Recordings"). The Sound Recordings were created pursuant to exclusive recording agreements between Bob Marley and the predecessor-in-interest to defendant UMG Recordings, Inc. ("UMG"). The plaintiffs—Bob Marley's widow, Rita Marley, as well as nine of Bob Marley's children (together with Rita Marley, the "Adult Beneficiaries"), and their wholly-owned company, Fifty-Six Hope Road (collectively, the "Plaintiffs")—allege that the renewal term copyrights in the Sound Recordings reverted to them under the Copyright Act of 1909 upon Bob Marley's death in 1981. Plaintiffs also assert claims for underpayment of royalties against UMG. Plaintiffs and UMG have cross-moved for partial summary judgment. For the following reasons, UMG's motion is granted in part and Plaintiffs' motion is denied."

The Court analyzed Marley's recording agreements, distinguished a Copyright Act "author" from a common-dictionary-usage "author," and after considering various factors determined that Bob Marley's recordings are "works made for hire" under the Copyright Act of 1909.

The royalties claim concerns digital downloads - the Court found that contract ambiguities precluded summary judgment

$6.5mil Statutory Damages In Copyright Case

2010-09-27T08:23:00.001-04:00

Arista Records LLC v. Usenet.Com, Inc., 07 Civ. 8822 (HB), NYLJ 1202472409489 (SDNY, Decided September 16, 2010)

"In this copyright infringement action, this Court previously granted Plaintiffs'² motion for summary judgment in its entirety, granted Plaintiffs' motion for terminating sanctions in part, and dismissed Defendants'³ cross-motion for summary judgment as moot. See Arista Records, LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 129 (S.D.N.Y. 2009) (hereinafter the "Liability Decision"). The action was then referred to Magistrate Judge Theodore H. Katz for an inquest on damages. On February 2, 2010, Magistrate Judge Katz issued a detailed and articulate 23-page Report and Recommendation ("R&R"), in which he recommended that Defendants be held jointly and severally liable for statutory damages in the amount of $6,585,000. On February 15, 2010, Defendant Gerald Reynolds timely filed objections to Magistrate Judge Katz's R&R pursuant to 28 U.S.C. §636(b)(1) and Federal Rule of Civil Procedure 72.⁴ For the following reasons, after considering Reynolds's objections, and reviewing the remainder of the R&R for clear error, this Court approves, adopts, and ratifies Magistrate Judge Katz's R&R in its entirety."

Assignment of Label Trademark

2010-09-01T07:37:00.003-04:00

Fitzpatrick v. Sony-BMG Music Entertainment, Inc., 07 Civ. 2933 (SAS), NYLJ 1202471263978, at *1 (SDNY, Decided August 23, 2010):

Plaintiff Basil Fitzpatrick brought suit under section 1125 of Title 15 of the United States Code (the "Lanham Act") against Sony-BMG Music Entertainment, Inc. and Red Distribution, Inc. (collectively the "Red defendants") and Sheridan Square Entertainment, LLC ("SSE"), Sheridan Square Entertainment, Inc., and Daniel Goldberg (collectively, the "SSE defendants"). Fitzpatrick alleges that the SSE defendants infringed his common law trademark in the name "ARTEMIS RECORDS" by improperly using that name and creating reverse confusion in the marketplace. Goldberg now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on the ground that he assigned the "ARTEMIS RECORDS" trademark to SSE and is therefore not liable for any alleged "indirect infringement." For the reasons that follow, Goldberg's motion is granted and plaintiff's Complaint is dismissed against him.

The Court held the assignment was not an invalid assignment "in gross."

Monies Gifts, Not Loans, from Label to DJ

2010-08-03T08:08:00.003-04:00

ABKCO Music & Records v. Montague, NYLJ 8/3/10 "Decision of Interest" (Sup. Ct., N.Y. Co. July 26, 2010).

"What is in dispute is whether certain funds transferred from ABKCO on an on-going basis at the direction of its founder and principal, Allen Klein (Klein) (now deceased), to Montague(s), were interest-free, uncollateralized loans or were they gifts or perhaps investments. Arrangements between the parties, if any, were remarkably informal, but now ABKCO seeks the return of several hundred thousand dollars claimed to be loans."

Court dismisses plaintiff's claims - no evidence these were loans.

File Sharing Jury Award Reduced 90%

2010-07-13T06:58:00.004-04:00

Sony BMG Music v. Tenenbaum, No. 07 Civ 11446 (D. Mass. memo and order filed July 9, 2010):

This copyright case raises the question of whether the Constitution’s Due Process Clause is violated by a jury’s award of $675,000 in statutory damages against an individual who reaped no pecuniary reward from his infringement and whose individual infringing acts caused the plaintiffs minimal harm. I hold that it is.

Joel Tenenbaum (“Tenenbaum”), the defendant in this action, was accused of using file- sharing software to download and distribute thirty copyrighted songs belonging to the plaintiffs. The plaintiffs are a group of the country’s biggest recording companies. Their lawsuit against Tenenbaum is one of thousands that they have brought against file sharers throughout the country. Tenenbaum, like many of the defendants in these suits, was an undergraduate when his file- sharing was detected.

Lady Gaga Insurer Seeks Declaratory Judgment

2010-07-09T08:55:00.001-04:00

Navigators Specialty Insurance Company v. Mermaid Music LLC; Stefani Joanne Germanotta; Team Love Child; Rob Fusari Productions LLC individually and in the right of Team Love Child LLC, Index No. 108996/2010 (Sup.Ct., N.Y. Co. filed 7/8/2010)

Plaintiff seeks a declaration that it is not required to defend and indemnify the insured, Stefani Germanotta (aka "Lady Gaga") in an underlying breach of contract action, on the basis of the policy's definition of "professional services." While the underlying complaint alleges breaches of a production agreement held between Germanotta and defendant Rob Fusari, none of these causes of action assert that the insured was negligent in the performance of music production, rendering the policy inapplicable to the claim.

'Beat It' to Promotor's Claims Against Jackson Estate

2010-07-09T07:17:00.005-04:00

Allgood Entertainment, Inc. v. Dileo Entertainment Entertainment & Touring, Inc., et al., No. 09 Civ. 5377 (S.D.N.Y. opinion & order June 29, 2010).

"This case is about whether or not Michael Jackson, through his alleged manager Frank Dileo, agreed to perform a concert with the plaintiffs, AllGood Entertainment, Inc. and AllGood Concerts, LLC, and then later reneged on this agreement in order to perform a different concert with the defendants Anshutz Entertainment Group, AEG Live, LLC, and AEG Live NY, LLC. Plaintiffs allege breach of contract, promissory estoppel, and fraud by Frank Dileo and his management company, Dileo Entertainment and Touring, Inc., and allege tortious interference of contract on the part of Anshutz Entertainment Group and the other AEG entities; Plaintiffs also seek a permanent injunction. Both sets of defendants have moved to dismiss for failure to state a claim. For the reasons below, the tortious interference, fraud, and permanent injunction claims are DISMISSED."

GaGa Over Tour Merchandise

2010-07-01T07:38:00.003-04:00

Lady GaGa's merchandising company brings "Doe" trademark suit asking court to authorize the US Marshal to seize and impound counterfeit merchandise.

The Bravado International Group Merchandising Services Inc. v. John Does 1-100, 10-cv-04943 (S.D.N.Y. filed June 25, 2010)

Ringtone Royalty Rate Approved By DC Circuit

2010-06-29T07:34:00.003-04:00

RIAA v. Librarian of Congress, No. 09-1075 (D.C. Cir. decided June 22, 2010).

Rebuking a challenge by the Recording Industry Association of America, the DC District Court upheld a decision by the Copyright Royalty Board setting the ringtone "penny-rate" royalty rate at $0.24. The court also upheld a new late fee, 1.5%, for overdue royalty payments.

The Board's decision was "reasonable and reasonably explained."

Attorneys' Fees Denied In Recording Software Case

2010-06-15T07:21:00.003-04:00

Waves Audio Ltd v. Reckless Music LLC, 09 Civ 2282, 6/15/10 NYLJ "Decision of Interest" (S.D.N.Y. June 9, 2010).

This is a copyright infringement action concerning audio software designed for use in recording studios. Following a jury trial, the defendant, Reckless Music, LLC, doing business as Skyline Recording Studio ("Skyline"), was found liable for infringing two versions of copyrighted software created by the plaintiffs, Waves Audio, Ltd., and Waves, Inc. (collectively "Waves"). Waves moved for an award of attorneys' fees and costs pursuant to the Copyright Act of 1976, 17 U.S.C. §505.

The motion was denied because defenses asserted were not "unreasonable." The remaining factors also favored Skyline or are neutral. There was no suggestion that Skyline's conduct either prior to or in the course of litigation was frivolous or improperly motivated. The goals of compensation and deterrence were fully satisfied by the statutory damage award assessed by the jury. And, finally, the financial strength of the parties counseled against an award of fees. Skyline appeared to be a relatively modest one-man operation, while Waves seemed fully capable of bearing its own costs.

2d Cir Rules On Copyright Statutory Damages

2010-05-18T11:28:00.004-04:00

Bryant v. Media Right Productions Inc., 09-2600-cv, 5/5/10 NYLJ "Decision of Interest" (2d Cir. decided April 27, 2010).

Affirming lower court's finding that musical albums were compilations, and therefore each infringer was liable for only one award of statutory damages per album, rather than one award per song.

"...[I]nfringement of an album should result in only one statutory damage award. The fact that each song may have received a separate copyright is irrelevant to this analysis." The Court expressly declined to adopt an"independent economic value test" (adopted by other circuits) that would have allowed a statutory damage award for each song on the album because the Copyright Act specifically states that all parts of a compilation must be treated as one work for the purpose of calculating statutory damages. "We cannot disregard the statutory language simply because digital music has made it easier for infringers to make parts of an album available separately." See also fn. 6, collecting local district court cases that have considered whether a compilation is subject to only one statutory damage award (and noting that those courts reached the same conclusion).

The Court then went on to review the District Court's decision on intent (it had found that the conduct was innocent, not willful infringement), its calculation of statutory damages ($2,400), and its decision not to award attorneys' fees.

Leave To Amend Pleading In Patent Case

2010-05-18T11:23:00.003-04:00

Touchtunes Music Corp. v. Rowe Int'l Corp., 07 Civ 11450, 5/18/10 NYLJ "Decision of Interest" (S.D.N.Y. decided May 11, 2010).

Defendant moved pursuant to Rule 15 of the Fed. R. Civ. P. for leave to file an amended answer containing an additional counterclaim of patent infringement. Motion granted.

The patent at issue relates generally to source code concerning how advertisements are assembled and executed on a jukebox or other electronic device.

Sony Loses Employment Suit Against EMI and Top Executive

2010-03-24T09:15:00.005-04:00

Sony Music Entertainment, Inc. v. Werre, No. 601441/09 (Sup. Ct., N.Y. Co. Mar. 19, 2010)

Sony sued a top EMI executive for alleged breach of contract, and EMI for tortious interference with that contract. The Court granted Defendants' motion to dismiss for failure to state a claim. (CPLR 3211(a)(7)). The Court found that the letter agreement at issue was not a binding, enforceable contract because a contingency, namely the executive's availability for employment on April 1, 2010, did not occur. Nor did the "prevention doctrine" apply because there was not binding contract in effect that contained the condition precedent in question; the contract was not binding on the parties until the condition precedent occurred such that the prevention doctrine did not apply. Similarly, since there was no valid contract, the tortious interference claim against EMI failed. Lastly, the fraud and breach of covenant of good faith and fair dealing claims against the executive were dismissed as duplicative of the (failed) breach of contract claim.

Sony v Werre (NYS)

My Boyfriend's Back

2010-03-09T10:01:00.004-05:00

Sirico v. F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (1st Dep't Mar. 4, 2010).

Singers of the 1960s hit "My Boyfriend's Back" sues producer of the recording concerning royalties. On appeal of denial of motion for renewal, the Appellate Division addresses plaintiff's New York breach of contract, breach of implied contract, unjust enrichment, accounting, rescission, and right of privacy statutory claims. Specifically at issue is whether summary judgment was appropriate based on limited discovery and problematic affidavits. The court also addresses laches, statute of limitations, limitation on equitable claims.

Sirico v F

Default Judgment Entered Against Distributing Agent Originally Appearing Thru Counsel

2010-03-02T08:50:00.002-05:00

Jeepster Recordings Ltd. v. World's Fair Label Group Inc., 09 Civ. 2155, NYLJ 3/2/10 "Decision of Interest" (S.D.N.Y. decided Feb. 22, 2010).

Plaintiff and Defendant entered into an agreement under which Defendant would become Plaintiff's North American distribution agent. Plaintiff alleges that Defendant failed to meet is distribution, accounting, and sales obligations, and withheld contractually obligated royalties owed to Plaintiff.

After the action commenced, Defendant's counsel withdrew and Defendant did not obtain alternative counsel. Thereafter, Plaintiff moved for default judgment seeking to recover monies that were allegedly improperly retained in breach of the distribution agreement.

"In this case, the allegations in the Complaint, coupled with [Defendant]'s failure to retain counsel and prosecute the case, support the entering of a default judgment and a finding that Defendant is liable for breach of the distribution agreement. "

Continuing:

"Although [Defendant] initially appeared, it has failed to retain counsel and has indicated that it does not intend to. As a corporate entity, [Defendant] can only appear through counsel. [Cit. om.]. The failure to retain counsel thus constitutes a failure to appear for further proceedings. Even though default judgments are generally disfavored, [Defendant]'s conduct indicates that it had the capability to defend itself, and its withdrawal and cessation of prosccution was willful and voluntary. While [Defendant] filed an answer and conducted some discovery, it did not raise any meritorious defenses. Finally, a denial of default judgment would prejudice [Plaintiff] because it has actively pursued its claims to recover monies under its agreement with [Defendant], and has not contributed to the default."

Label Defeats 'Inadvertent] Privilege Disclosure Claim

2010-02-09T07:30:00.004-05:00

Fifty-Six Hope Road Music, Ltd. v. UMG Recordings, Inc., No. 08-cv-6143, NYLJ 2/10/2010 "Decision of Interest" (S.D.N.Y. decided Feb. 1, 2010).

Plaintiffs claim privileged documents (attorney client and work product) were inadvertently produced to Defendant by a non-party witness pursuant to a subpoena.

At the heart of plaintiffs' application was their contention that they "retained" the non-party to act as their "representative" in the litigation. In this role, plaintiffs disclosed to the non-party "numerous confidential communications" between plaintiffs and their counsel, which plaintiffs contend are protected by the attorney client privilege and the work-product doctrine. Plaintiffs maintain that the nonparty was included on these communications based on plaintiffs' "understanding and expectation" that he would keep the communications confidential.

The Court found that Plaintiffs failed to meet their burden of establishing that the privilege should apply to the documents at issue because, inter alia, Plaintiff did not demonstrate that the non-party was their representative or agent.

2d Cir Finds Antitrust Suit Stated Against Record Labels For Online Sales

2010-01-14T08:01:00.004-05:00

The United States Circuit Court, Second Circuit, holds that plaintiffs' antitrust complaint alleging a conspiracy by major record labels to fix the prices and terms under which their music would be sold over the Internet states a claim for violation of Section 1 of the Sherman Act under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The amended complaint contains "enough factual matter (taken as true) to suggest that an agreement was made," id. at 555, and therefore states a claim.

"The present complaint succeeds where Twombly's failed because the complaint alleges specific facts sufficient to plausibly suggest that the parallel conduct alleged was the result of an agreement among defendants," Judge Katzmann said.

The defendants "agreed to launch MusicNet and pressplay, both of which charged unreasonably high prices and contained similar DRMs", and the entities did not "dramatically" drop "their prices for Internet Music (as compared to CDs), despite the fact that all defendants experienced dramatic cost reductions in producing Internet Music."

Starr v. Sony BMG, No. 08-5637-cv, NYLJ 1/14/2010 "Decision of the Day" (2d Cir. decided Jan. 13, 2010).

No Jurisdiction Over Indian Ringtone Website Under NY Long Arm

2009-12-22T16:58:00.003-05:00

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

2009-12-15T13:49:00.005-05:00

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

2009-11-24T16:09:00.005-05:00

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

2009-09-25T09:39:00.006-04:00

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

2009-09-08T10:11:00.002-04:00

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

2009-09-03T18:14:00.003-04:00

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

2009-08-24T10:56:00.003-04:00

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

2009-08-17T15:45:00.004-04:00

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

2009-08-12T09:29:00.004-04:00

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

2009-08-06T17:02:00.002-04:00

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?

2009-07-28T07:37:00.003-04:00

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

2009-07-10T09:16:00.003-04:00

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

2009-07-10T09:09:00.002-04:00

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

2009-06-08T09:33:00.004-04:00

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

2009-06-03T09:22:00.003-04:00

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

2009-05-21T10:19:00.002-04:00

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

2009-05-21T09:39:00.003-04:00

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

2009-04-27T07:33:00.004-04:00

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

2009-04-07T10:16:00.003-04:00

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

2009-03-11T16:20:00.003-04:00

"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

2009-03-06T07:47:00.004-05:00

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

2009-03-06T07:38:00.005-05:00

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

2009-03-04T07:35:00.003-05:00

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

2009-03-04T07:29:00.003-05:00

...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

2009-03-02T07:40:00.003-05:00

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

2009-03-02T07:21:00.003-05:00

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

2009-02-26T11:18:00.002-05:00

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

2009-02-24T13:57:00.002-05:00

"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

2009-02-23T07:51:00.003-05:00

"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

2009-02-17T13:03:00.001-05:00

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?

2009-02-12T08:04:00.003-05:00

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

2009-02-11T08:15:00.001-05:00

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

2009-02-10T13:41:00.002-05:00

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

2009-02-05T09:44:00.002-05:00

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?

2009-02-04T09:22:00.002-05:00

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

2009-02-03T09:41:00.003-05:00

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.