BMI v. Crocodile Rock Corp., No. 14-3891 (3d Cir. Oct. 30, 2015) (non-precedential opinion).
The Third Circuit held that performance rights organization BMI could recover a default judgment for more than the minimum statutory damages available under the Copyright Act. The Court found that so long as the award falls within the limits set by statute, the trial court's discretion and sense of justice were controlling in setting the amount of the award, even in the case of a default judgment and where the defendant's alleged profits are less than the amount awarded. Accordingly, the $35,000 award of statutory damages was affirmed.
October 29, 2015
Stratotone Mark For Guitars Was Abandoned, Permitting Junior Use
Agler v. Westheimer Corp., No. 14-099 (N.D. Indiana 10/28/15).
In a trademark infringement action concerning the mark STRATOTONE for guitars, the Court held that an abandonment of the mark permitted a junior user's use of the mark. A period of non-use by one of the parties triggered a presumption of abandonment, which was not rebutted.
In a trademark infringement action concerning the mark STRATOTONE for guitars, the Court held that an abandonment of the mark permitted a junior user's use of the mark. A period of non-use by one of the parties triggered a presumption of abandonment, which was not rebutted.
October 28, 2015
Will.i.am Denied Registration of :I AM" Trademark For Sunglasses
In re i.am.symbolic, llc, Serial Nos. 85044495 (TTAB mailed Oct. 7, 2015).
Black Eyed Peas frontman, "will.i.am," was refused registration of the mark I AM for use on sungalsses, on the basis of an existing mark for sunglasses for which there was a finding of likelihood of confusion. However, the application was permitted to proceed for other goods identified in the application under Class 9.
Black Eyed Peas frontman, "will.i.am," was refused registration of the mark I AM for use on sungalsses, on the basis of an existing mark for sunglasses for which there was a finding of likelihood of confusion. However, the application was permitted to proceed for other goods identified in the application under Class 9.
Sir-Mix-A-Lot Awarded Attorney's Fees For Defeating Copyright Claim
Ford v. Ray, No. 15-0432 (W.D. Wash. Oct. 27, 2015).
After dismissing plaintiff's copyright claim and granting Sir-Mix-A-Lot attorneys fees under 17 USC 505, the Court awarded defendant $20,000 in fees. The amount awarded was a reduction from the approximately $58,000 sought, based on partially redacted and duplicative time-sheets and avoiding putting the plaintiff in financial ruin.
After dismissing plaintiff's copyright claim and granting Sir-Mix-A-Lot attorneys fees under 17 USC 505, the Court awarded defendant $20,000 in fees. The amount awarded was a reduction from the approximately $58,000 sought, based on partially redacted and duplicative time-sheets and avoiding putting the plaintiff in financial ruin.
October 27, 2015
Beyonce Dodges Copyright Claim In "XO" v "XOXO" Case
Lane v. Carter et al., No. 14-cv-6798 (SDNY filed 10/21/15) [Doc. 51].
Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a). First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim. Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright. Accordingly, the claim was dismissed for lack of standing.
Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable. The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity. The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them. Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO. Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original). Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby." The themes were also different. Next, as to the music, the Court listened to the two song and found litte, if anything, in common. The Court, accordingly, dismissed the complaint with prejudice.
Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a). First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim. Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright. Accordingly, the claim was dismissed for lack of standing.
Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable. The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity. The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them. Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO. Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original). Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby." The themes were also different. Next, as to the music, the Court listened to the two song and found litte, if anything, in common. The Court, accordingly, dismissed the complaint with prejudice.
October 26, 2015
Pandora Pre-1972 Suit Settles
Various news outlets report that the Pandora pre-1972 sound recording litigation has settled for $90 million.
October 21, 2015
Plaintiffs In Sampling Case Fail To Sufficiently Plead Their Standing
Kelley v. The Universal Music Group, No. 14-cv-2968 (S.D.N.Y.
filed 10/19/15).
In a case alleging that a song by the artist "Fabulous"
infringed plaintiffs' 1974 song by including an unauthorized sample, the Court
dismissed the pro se plaintiffs' copyright claim without prejudice to amend
based on their lack of standing. The Court found that a copyright registration
listing the plaintiffs as authors but not claimants rebutted their claim; but,
that plaintiffs could replead to allege that they have standing as "beneficial
owners" (i.e. a right to collect royalties), which was not sufficiently pleaded. The other state-law claims for violation of
"poetic license " and "fraudulent deceit" were held to be
preempted by the copyright act, and the mental anguish claim was not a remedy
authorized by the statute.
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