Broadcast Music, Inc. v. Meadowlake, Ltd. et al., No. 13-3933 (6th Cir. June 6, 2014) [decision].
The Sixth Circuit holds that an individual, who owned 95% a limited liability company that owned a restaurant that offered dancing and live music, was liable for vicarious copyright infringement (public performance right). As the company’s chief (95%) owner and the restaurant’s ultimate decision maker, the individual defendant had the right and ability to supervise the infringing performances. According to the 6th Circuit, "This case indeed falls within the heartland of vicarious liability." The Court rejected the defendant's argument that his son was the day-to-day manager of the restaurant, that he claimed ignorance of the infringement, and that ownership via a limited liability company shielded liability. "Either way, Roy profited from infringement at his restaurant while refusing to exercise his right to stop it. And so either way, Roy remains vicariously liable."
June 5, 2014
DOJ To Review ASCAP & BMI Consent Decrees
Multiple news outlets are reporting that the Department of Justice, Antitrust Division, has agreed to open a review of the ASCAP and BMI consent decrees. See the DOJ announcement and ASCAP's statement.
May 27, 2014
Copyright Claim Dismissed Against Usher Because No Substantial Similarity
Edwards et al. v Usher Raymond IV et al., No. 1:13-cv-07985-DLC (S.D.N.Y. filed 05/23/14) [Doc. 36].
Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition. On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law. Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.
First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase. Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar. Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar. Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.
Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition. On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law. Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.
First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase. Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar. Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar. Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.
May 23, 2014
Attorney Sanctioned In Usher Copyright Action
Marino v. Usher et al., Index No. 6811-cv-11 (E.D. Pa. memorandum dated May 21, 2014).
The court dismissed most of the plaintiff song-writer's copyright infringement claims against Usher and other defendants, and sanctioned plaintiff's counsel for behaving "in a flagrantly unprofessional and offensive manner." The sanctionable conduct: the attorney "(1) inveigled an inculpatory affidavit from unrepresented Defendant William Guice; and (2) after falsely assuring Guice that he was only a witness, entered a default against him."
The court dismissed most of the plaintiff song-writer's copyright infringement claims against Usher and other defendants, and sanctioned plaintiff's counsel for behaving "in a flagrantly unprofessional and offensive manner." The sanctionable conduct: the attorney "(1) inveigled an inculpatory affidavit from unrepresented Defendant William Guice; and (2) after falsely assuring Guice that he was only a witness, entered a default against him."
April 30, 2014
Attorney's Fees Awarded To Madonna In Infringement Action
VMG Salsoul LLC v. Madonna Louise Ciccone et al., No. 2:12-cv-05967 (C.D. Cal. filed Apr. 28, 2014) [Doc. 148].
Madonna and other music-industry defendants were awarded their attorney's fees in a copyright infringement action in which the Court had dismissed plaintiff's claim, finding that the alleged infringement of the musical composition was not sufficiently original to be copyrightable and that any alleged sampling was de minimis. Although the Court found that the fees and costs were unreasonable and unnecessary to the litigation, and therefore declined to award the full amount requested, the Court nonetheless awarded defendants $670.117.25 in attorneys’ fees and $50,055.00 in costs, pursuant to 17 U.S.C. 505.
Madonna and other music-industry defendants were awarded their attorney's fees in a copyright infringement action in which the Court had dismissed plaintiff's claim, finding that the alleged infringement of the musical composition was not sufficiently original to be copyrightable and that any alleged sampling was de minimis. Although the Court found that the fees and costs were unreasonable and unnecessary to the litigation, and therefore declined to award the full amount requested, the Court nonetheless awarded defendants $670.117.25 in attorneys’ fees and $50,055.00 in costs, pursuant to 17 U.S.C. 505.
April 11, 2014
2d Cir. To Hear Vimeo Interlocutory Appeal
Capitol Records, LLC v. Vimeo LLC, 2d Cir. Index Nos. 14-15 and 14-16 (2d Cir. April 9, 2014) [Doc. 57].
The Second Circuit agreed to hear interlocutory appeals, pursuant to 28 U.S.C. § 1292(b), and to consolidate the appeals. The Second Circuit is now in a position to rule on whether the DMCA applies to pre-1972 sound recordings, and to clarify the willful blindness doctrine.
The Second Circuit agreed to hear interlocutory appeals, pursuant to 28 U.S.C. § 1292(b), and to consolidate the appeals. The Second Circuit is now in a position to rule on whether the DMCA applies to pre-1972 sound recordings, and to clarify the willful blindness doctrine.
March 27, 2014
Use Of Rapper's Image On Website Constitutes Copyright Infringement And Violated Right Of Publicity; Questions Remain on Trademark And Third-Party Contribution Claims
Jackson v. Odenot, No. 09-cv-05583 (S.D.N.Y. filed March 24, 2014) [Doc. 150].
Rapper 50 Cent was granted summary judgment on his claims against a website for the unauthorized use of photographs that appeared on the masthead of the website. 50 Cent's claim for copyright infringement was based on a registration for a sound recording which included the relating artwork/photos, and exact copies were used by the defendants. 50 Cent's claim under New York state law for the right of publicity (Civil Rights Law sections 50-51) succeeded because: (1) the pictures "are recognizable likenesses of Jackson because someone familiar with Jackson would be able to identify him in each of the mastheads", and (2) defendants' waived their statute of limitations defense. However, the Court found that there were questions of fact that precluded summary judgment on 50 Cent's claim under the Lanham Act for false endorsement, 15 USC 1125(a)(1), and also on his claim for common law unfair competition. The Court did dismiss the defendants' affirmative defenses of fair use, implied license, equitable estoppel, and unclean hands, and found that the other affirmative defenses had been abandoned. Lastly, the Court held that defendant could not recover on a contribution theory under copyright and trademark law against the third-party defendants, but could seek contribution under the New York state claims.
Rapper 50 Cent was granted summary judgment on his claims against a website for the unauthorized use of photographs that appeared on the masthead of the website. 50 Cent's claim for copyright infringement was based on a registration for a sound recording which included the relating artwork/photos, and exact copies were used by the defendants. 50 Cent's claim under New York state law for the right of publicity (Civil Rights Law sections 50-51) succeeded because: (1) the pictures "are recognizable likenesses of Jackson because someone familiar with Jackson would be able to identify him in each of the mastheads", and (2) defendants' waived their statute of limitations defense. However, the Court found that there were questions of fact that precluded summary judgment on 50 Cent's claim under the Lanham Act for false endorsement, 15 USC 1125(a)(1), and also on his claim for common law unfair competition. The Court did dismiss the defendants' affirmative defenses of fair use, implied license, equitable estoppel, and unclean hands, and found that the other affirmative defenses had been abandoned. Lastly, the Court held that defendant could not recover on a contribution theory under copyright and trademark law against the third-party defendants, but could seek contribution under the New York state claims.
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