Plaintiff's Award Reduced In Wu-Tang Suit

Coles v Wu-Tang Prods., Inc., 2011 NY Slip Op 00789 (1st Dep't Feb. 10, 2011)

The appellate division modified the trial' court's award to plaintiff by 25% of the net royalty payments received by defendant Wu-Tang Productions.

The action was for the payment of royalties for musical compositions co-written by plaintiff. The Court found that the documentary evidence established that Wu-Tang was entitled to retain 25% of the net royalty payments it received from Careers-BMG Music Publishing, Inc. (BMG) before paying plaintiff his share. Pursuant to the agreement between plaintiff and Wu-Tang, plaintiff conveyed an undivided 50% percent interest in the copyrights in those compositions to Wu-Tang, and, with plaintiff's consent, Wu-Tang transferred 50% percent of its interest in the copyrights to BMG. Thus, Wu-Tang retained a 25% interest in the copyrights.

Additionally, the record supported the trial court's determination that plaintiff, as a lyricist of the compositions, and defendant producer of the music, regarded themselves as joint authors sharing equally in the ownership of a joint work. Thus, the court properly granted plaintiff leave to conform the complaint to the evidence presented at trial by adding a claim against the producer for his unauthorized receipt of a 50% producer's fee

Copyright Case Over Lil' Wayne Movie Dismissed

Crump v. QD3 Entertainment, Inc., 2011 WL 446296 (S.D.N.Y. Feb. 8, 2011) (Jones, J.).

The lawsuit stems from the use of three copyrighted musical compositions in a documentary film entitled The Carter. The film focused on the life of Dwayne Carter, a hip hop and urban musical artist who is known by his stage name “Lil' Wayne.”

Defendants moved for summary judgment. As a procedural matter, the court focused on Plaintiff's failure: to oppose the filing of a motion for summary judgment pre-discovery, to file a Rule 56(f) affidavit, and to describe any potentially discoverable facts that make a motion for summary judgment premature.

In its legal analysis, the Court found that "the only issue is whether the agreement with another Young Money entity (Young Money Entertainment, Inc.) was sufficient to grant a nonexclusive license in the Defendants." The Court determined that the language of the subject agreement and uncontested facts clearly established that Defendants received a non-exclusive license to use any performance by Dwayne Carter of his copyrighted musical compositions, including “Pussy Monster,” “La La,” and “Lollipop.” In sum, Defendants met their burden of establishing that they received a grant of a nonexclusive license from Dwayne Carter and Young Money Publishing to use the three musical compositions at issue here in The Carter. The undisputed facts presented by both parties demonstrated that the clear intent of the parties was to grant the nonexclusive license. Summary judgment granted to Defendants.

Summary Judgment Motions Denied In Alleged Hip Hop Infringement

Lessem v. Taylor et al., No. 07 Civ 10601(LLS), 2011 WL 344104 (S.D.N.Y. Feb. 3, 2011).

Plaintiffs moved for summary judgment that defendants' song "How We Do" infringes their copyrighted song "Elevator". (Defendants' song appears on the album "The Documentary" by hip-hop artist The Game.)

The Court analyzed defendants' access to the Plaintiff's work (specifically, through a third-party intermediary), the probative similarity of the two works (based on expert reports), the alleged improper appropriation, and whether or not defendants independently created their song. The Court determined that factual issues precluded summary judgment.

Music Photos Suit

Lawrence Martin Temme v. Sony Music Entertainment, Index No. 11-650342 (Sup. Ct., N.Y. Co. filed 2/8/2011).

Complaint for negligence and conversion. Plaintiff, a freelance music photographer, alleges that over the course of his 20 years in the music industry, he has photographed some of the biggest names in popular music. Plaintiff alleges that the defendant has lost or converted thousands of valuable photographic images belonging to the Plaintiff. Plaintiff seeks $500,000 in damages based on the defendant's alleged breach of bailment, its negligence, and its conversion of the plaintiff's property.

Ramones Royalties Suit

Christopher J Ward v. Ramones Production Inc. et al, Index 650291/2011 (Sup. Ct., NY Co. filed Feb. 2, 2011). Complaint for breach of contract. Plaintiff (known as "CJ Ramone") is a former member of the rock band The Ramones. Plaintiff seeks to recover royalty payments for musical compositions created by the Ramones. $600,000.

Napster Loses Indemnification Suit Against Label Over Mechanical Licenses

Napster LLC v Rounder Records Corp., No. 09-cv-00318 (S.D.N.Y. decided Jan. 25, 2011).

The dispute is over whether Rounder, a record label, is contractually obligated to indemnify Napster for costs incurred due to copyright infringement lawsuits brought by the owners of musical compositions embodied in the sound recordings provided by Rounder. Napster contends that under two contracts, Rounder was required to procure mechanical licenses for use of the infringed musical compositions.

The court dismissed Napster’s claim based on the first contract because the contract was rescinded by the second contract, thereby extinguishing any claim Napster might have had for its breach. The court dismissed Napster’s claim based on the second contract (i) for Napster's failure to comply with its advance consent provision concerning indemnification; and (ii) it was not Rounder’s responsibility to procure mechanical licenses for the infringing compositions under the contract.

Motion to dismiss granted.

Downloads Not Public Performances; Fees Must Be Recalculated

US v. American Society of Composers, Authors and Publishers, 09-0539-cv (L), NYLJ [web_id_#], at *1 (Court, Decided September 28, 2010) [LINK]

"This case presents two distinct questions that arise from the transmittal of musical works over the Internet: First, whether a download of a digital file containing a musical work constitutes a public performance of that musical work; and, second, whether the district court, acting in its capacity as the rate court, was reasonable in its assessment of the blanket license fees of Yahoo! Inc. and RealNetworks, Inc. (collectively, "the Internet Companies") to publicly perform any of the millions of musical compositions in the American Society of Composers, Authors and Publishers ("ASCAP") repertory.

For the reasons set forth below, we affirm the district court's ruling that a download of a musical work does not constitute a public performance of that work, but we vacate the district court's assessment of fees for the blanket ASCAP licenses sought by the Internet Companies and remand for further proceedings."