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.
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.
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
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."
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.
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.
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."
On The Cover Songs ("OTCS") is compiled by attorney Jordan Greenberger, the founding member of J. Greenberger, PLLC in Brooklyn, New York.
OTCS is provided for general informational purposes only. By using OTCS, you agree that the information on this blog does not constitute legal or other professional advice and no privileged or confidential attorney-client or other relationship is created between OTCS and you. The opinions and views expressed on OTCS are those of the individual author of OTCS and not J. Greenberger, PLLC. Any "comments" posted on OTCS solely represent the opinions and views of the commenter/poster and not the individual author of OTCS.
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