80's Pop Song Makes It Into Supreme Court Decision

American Trucking Association, Inc v. City of Los Angeles, No. 11–798 (U.S. June 13, 2013).

The issue before the Supreme Court was whether certain requirements implemented by the Port of Los Angeles (CA) were pre-empted by federal law, the Federal Aviation Administration Authorization Act of 1994.  The local regulation required a company to affix a placard on each truck with a phone number for reporting concerns, and to submit a plan listing off-street parking locations for each truck  The Supreme Court held that the the federal law pre-empted the local regulation.

What has this got to do with music?  In delivering the opinion of the Court, Justice Kagen wrote (at p. 2 of the slip opinion):

...a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: “How am I driving? 213–867–5309”) and (2) submit a plan listing off-street parking locations for each truck when not in service.  [Emphasis added].

That phone number, of course, is from Tommy Tutone's classic 1980s one-hit wonder "867-5309/Jenny".

Bowery Presents Avoids Arbitration In Ticket Case

The Bowery Presents LLC v. Pires, No. 653377/2012, NYLJ 1202608931096, at *1 (Sup. Ct., N.Y. Co. decided June 24, 2013) (Bransten, J.S.C.).

Bowery Presents, a concert promoter, moved to stay arbitration that had been filed by the respondent ticket purchaser on the basis that Bowery Presents was not a party to an arbitration agreement with the respondent.  The Court granted the motion and stayed arbitration.

Bowery Presents had entered into a written License Agreement with Live Nation Entertainment, Inc. (d/b/a Ticketmaster) ("Ticketmaster") under which Ticketmaster was to act as Bowery's agent for the sale and distribution of tickets to entertainment events.   Bowery Presents was the promoter for a March 28, 2012 event to which the respondent purchased a ticket through the Ticketmaster website.  In order to purchase her ticket, Respondent was required to agree to the "Terms of Use" on Ticketmaster's website. The Terms of Use contained an arbitration clause: "Live Nation and you [user of ticketmaster.com and its related websites] agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted." 

In the arbitration, Respondent asserts a claim pursuant to §25.33 of the Arts and Cultural Affairs Law of the State of New York ("ACAL") to recover damages and injunctive relief arising from Bowery's alleged violations of §25.30(c) of the ACAL by employing a paperless ticketing system.  Respondent contended that Bowery violated ACAL §25.30(c) by employing a paperless ticketing system without providing the consumer the option of purchasing the tickets in a transferable form.  Respondent thus filed a demand for arbitration.  The issue was whether Bowery Presents, a nonsignatory to the arbitration agreement, could nonetheless be bound by the arbitration clause.

The Court found that Ticketmaster was Bowery's limited agent and, therefore, Bowery was not bound by the arbitration clause in the Terms of Use.  Moreover, the Court found that even if Ticketmaster did possess sufficient authority to bind Bowery Presents to an arbitration agreement, the plain language of the arbitration clause at issue bound only Ticketmaster and the ticket purchaser to arbitration, not Bowery Presents. 

New Suits Against Labels

Two suits were filed yesterday in SDNY against various record labels:

Grant v. Warner Music Group Corp. and Atlantic Recording Corp., No. 13-cv-4449 (alleging violation of the Fair Labor Standards Act concerning failure to pay employees minimum wages and overtime compensation).

Slip-N-Slide Records Inc. v. The Island Def Jam Music Group, No. 13-cv-4450 (seeking an accounting, declaratory judgment and claiming breach of fiduciary duty relating to defendant's agreement to manufacture and distribute sound recordings of plaintiff's artists).

1st Cir Affirms $675,000 Jury Award For Unauthorized Downloads/Distributions

Sony BMG Music Entertainment v. Tenenbaum, No. Case: 12-2146 (1st Cir. filed 6/25/2013) [Doc. 00116547502].

From the decision:

Joel Tenenbaum illegally downloaded and distributed music for several years. A group of recording companies sued Tenenbaum, and a jury awarded damages of $675,000, representing $22,500 for each of thirty songs whose copyright Tenenbaum violated. Tenenbaum appeals the award, claiming that it is so large that it violates his constitutional right to due process of law. We hold that the award did not violate Tenenbaum's right to due process, and we affirm.

The two issues on appeal were: (1) what is the correct standard for evaluating the constitutionality of an award of statutory damages under the Copyright Act; and (2) did an award of $675,000 violate defendant's right to due process?  On issue one, the Court held that the correct standard was that announced in St. Louis, I.M. & S.Ry. Co. v. Williams, 251 U.S. 63 (1919), that a statutory damage award violates due process only "where the penalty prescribed is so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."  On issue two, the Court found that the award did not violate defendant's due process rights.

CLE "Does The DMCA Apply To Pre-1972 Sound Recordings"

This afternoon, David Rabinowitz and I co-presented a CLE entitled "Why The Internet Distribution of Pre-1972 Sound Recordings Is Different From Everything Else In Copyright Law -or- Does The DMCA Apply To Pre-1972 Sound Recordings."  Topics included a brief history of copyright in sound recordings, the scope of common law copyright protection, federal preemption of common law copyright (except for pre-1972 recordings), related claims of unfair competition, the DMCA safe-harbor, conflicting case law on whether the DMCA safe-harbor applies to pre-1972 recordings, and conflicting decisions on whether there is immunity for service providers under the Communications Decency Act.  Thank you to those who attended.

Happy Birthday Class Action

Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., No. 1:13-cv-4040 (S.D.N.Y. filed June 13, 2013).

Plaintiff brings a class action on behalf of licensees of the song "Happy Birthday to You" (from June 13, 2009-present), seeking a declaratory judgment that defendant does not have the right to collect licensing fees for use of the song, "Happy Birthday To You."  Plaintiff claims that the song is in the public domain and dedicated to public use.

BMI Brings Petition For Pandora Blanket License

Broadcast Music, Inc. v. Pandora Media, Inc., No, 1:13-cv-4037 (S.D.N.Y. filed June 13, 2013).

BMI seeks a determination of license fees/terms for a blanket license covering all BMI musical compositions performed on the streaming service Pandora.