Newsboys v. Warner Bros. Records Inc. et al., No. 3:12-cv-0678 (M.D. Tenn. - Nashville filed July 11, 2013) [Doc. 41].
Plaintiffs filed suit under the Lanham Act against defendants -- music distributors and the band New Boyz -- alleging trademark infringement of the mark NEWSBOYS. The court concluded that the plaintiffs Newsboys Inc. lacked standing to pursue its claims because the other plaintiff, Wesley Campbell, is the sole owner of the Newboys trademark. Also, the Court concluded that because Campbell's registered trademark is limited to "live musical performances of a religious nature rendered by a group," he had failed to allege plausible facts of the likelihood of confusion of the two groups.
July 18, 2013
7th Cir. Affirms Dismissal of "Nikita"/"Natasha" Suit Against Elton John
Hobbs v. Elton John, No. 12-3652 (7th Cir. July 17, 2013).
Plaintiff composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress. Plaintiff tried to publish his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Plaintiff had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Plaintiff eventually demanded compensation
from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Plaintiff's complaint for failure to state a claim, and the district court granted the defendants’ motion. The 7th Circuit affirmed.
The Court held that Plaintiff failed to state a claim for copyright infringement because, even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar. Defendants conceded that Plaintiff owned a valid copyright in the song and that Defendants had access to it. "Thus, the defendants can only prevail on their motion to dismiss if 'Natasha' and 'Nikita'
are not 'substantially similar' as a matter of law. That is, if as a matter of law 'Natasha' and 'Nikita' do not 'share enough unique features to give rise to a breach of the duty not to copy another’s work'." The Court found that Plaintiff's argument "flounders on two well-established principles of copyright law." First, that the Copyright Act does not protect general ideas, but only the particular expression of an idea. And second, even at the level of particular expression, the Copyright Act does not protect “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” A careful review of both songs’ lyrics reveals that Plaintiff's first four allegedly similar elements are expressed differently in “Natasha” and “Nikita.” And the remaining similar elements are rudimentary, commonplace, standard, or unavoidable in popular love songs. The two songs simply “tell different stories."
Because “Natasha” and “Nikita” are not “substantially similar” as a matter of law, Plaintiff's copyright infringement claim failed as a matter of law.
Plaintiff composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress. Plaintiff tried to publish his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Plaintiff had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Plaintiff eventually demanded compensation
from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Plaintiff's complaint for failure to state a claim, and the district court granted the defendants’ motion. The 7th Circuit affirmed.
The Court held that Plaintiff failed to state a claim for copyright infringement because, even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar. Defendants conceded that Plaintiff owned a valid copyright in the song and that Defendants had access to it. "Thus, the defendants can only prevail on their motion to dismiss if 'Natasha' and 'Nikita'
are not 'substantially similar' as a matter of law. That is, if as a matter of law 'Natasha' and 'Nikita' do not 'share enough unique features to give rise to a breach of the duty not to copy another’s work'." The Court found that Plaintiff's argument "flounders on two well-established principles of copyright law." First, that the Copyright Act does not protect general ideas, but only the particular expression of an idea. And second, even at the level of particular expression, the Copyright Act does not protect “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” A careful review of both songs’ lyrics reveals that Plaintiff's first four allegedly similar elements are expressed differently in “Natasha” and “Nikita.” And the remaining similar elements are rudimentary, commonplace, standard, or unavoidable in popular love songs. The two songs simply “tell different stories."
Because “Natasha” and “Nikita” are not “substantially similar” as a matter of law, Plaintiff's copyright infringement claim failed as a matter of law.
July 9, 2013
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):
That phone number, of course, is from Tommy Tutone's classic 1980s one-hit wonder "867-5309/Jenny".
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".
July 2, 2013
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.
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.
June 28, 2013
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).
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).
June 26, 2013
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:
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.
June 25, 2013
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.
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