In re Scott P. Schreer, No. 2012-1564 (Fed. Cir. May 21, 2013).
The Court of Appeals for the Federal Circuit affirmed the Board of Patent Appeals decision that "the claims would have been obvious to one of ordinary skill in the art at the time of invention..." The patent application sought to cure problems relating to the "public performance" right of copyright holders by claiming a method of compensating the copyright holders. "Generally speaking, the claimed method method consists of embedding identification information in an audio file, broadcasting the audio file in a public broadcast, receiving the audio file by a monitoring station, correlating the identification information to a copyright holder, and then compensating the copyright holder."
May 23, 2013
May 21, 2013
Class Action Brought Against eMusic
Dabaghian v. eMusic.com, No. 651794/2013 (Sup. Ct., N.Y. Co. filed 5/20/2013).
Plaintiff brought a class action for breach of contract, breach of warranty and violations of N.Y. Gen. Bus. Law. Plaintiff alleges that eMusic sells music download cards that represent that a specific number of songs can be purchased for a fixed price. Plaintiff allegedly purchased such a card that advertised 30 songs for $15. However, plaintiff allegedly was only able to download 16 songs before the card was depleted. Plaintiff alelges that eMusic failed to disclose it had switched to a monetary based credit system where each song is individually priced. Under this system, a song may cost 89 cents, and allegedly only rarely costs 50 cents. Accordingly, Plaintiff alleges it is impossible to purchase 30 songs for $15.
Plaintiff brought a class action for breach of contract, breach of warranty and violations of N.Y. Gen. Bus. Law. Plaintiff alleges that eMusic sells music download cards that represent that a specific number of songs can be purchased for a fixed price. Plaintiff allegedly purchased such a card that advertised 30 songs for $15. However, plaintiff allegedly was only able to download 16 songs before the card was depleted. Plaintiff alelges that eMusic failed to disclose it had switched to a monetary based credit system where each song is individually priced. Under this system, a song may cost 89 cents, and allegedly only rarely costs 50 cents. Accordingly, Plaintiff alleges it is impossible to purchase 30 songs for $15.
May 16, 2013
Reconsideration in MP3Tunes Case
Capitol Records, Inc. v. MP3Tunes, LLC, No. 07-cv-9931 (S.D.N.Y. filed May 14, 2013) [Doc. 368].
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
May 13, 2013
Composer's Suit Against Orchestra Survives Summary Judgment
Currier v Brooklyn Philharmonic Symphony, No. 7661/2009 (N.Y. Sup. Ct., Kings Co. May 6, 2013). Decision here.
Defendant symphony motion for summary judgment on Plaintiff's claims for breach of contract denied (though the claim for breach of the duty of good faith and fair dealing was dismissed). The dispute is based on the symphony's failure to perform the entirety of Plaintiff's 3-act piece, and on issues relating to the length of breaks and overtime for the musicians.
Defendant symphony motion for summary judgment on Plaintiff's claims for breach of contract denied (though the claim for breach of the duty of good faith and fair dealing was dismissed). The dispute is based on the symphony's failure to perform the entirety of Plaintiff's 3-act piece, and on issues relating to the length of breaks and overtime for the musicians.
May 9, 2013
Gaga Dismissed From Copyright Case Because Indemnification And Contribution Not Available
Gaines v. Fusari, No. 2:11-cv-04433-WJM-MF (D.N.J. filed 05/08/13) [Doc. 85].
The Court granted third-party defendant Lady Gaga's motion to dismiss the third-party complaint. Gaga and defendant co-own the copyright to a number of songs. Plaintiff brought the action seeking a declaration that he is a co-author and co-producer of the songs. After Plaintiff sued defendant, defendant brought third-party claims for indemnification and contribution against Gaga. The Court found:
The Court granted third-party defendant Lady Gaga's motion to dismiss the third-party complaint. Gaga and defendant co-own the copyright to a number of songs. Plaintiff brought the action seeking a declaration that he is a co-author and co-producer of the songs. After Plaintiff sued defendant, defendant brought third-party claims for indemnification and contribution against Gaga. The Court found:
Fusari’s indemnification and contribution claims against Germanotta must be grounded in federal law. But neither federal statutory law nor federal common law provide causes of action for indemnification or contribution in Copyright Act cases. See, e.g., Pure Country Weavers, Inc. v. Bristar, Inc., 410 F. Supp. 2d 439, 448 (W.D.N.C. 2006) (no cause of action for indemnification in Copyright case); Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 416 (D.N.J. 2005) (no cause of action for contribution in Copyright case). Accordingly, the Court will DISMISS Counts I and II WITH PREJUDICE.
May 8, 2013
Publisher Denied Attorney's Fees
De Walt v. Jobete Musc Co., No. B240650 (Cal. App. Ct., 2d Dist. filed May 7, 2013).
The California appellate court held that a publisher (related to MoTown) could not recover attorney's fees in a royalties related suit in which the publisher prevailed because the company didn't move for the fees in the initial trial over copyright-misappropriation claims.
The California appellate court held that a publisher (related to MoTown) could not recover attorney's fees in a royalties related suit in which the publisher prevailed because the company didn't move for the fees in the initial trial over copyright-misappropriation claims.
This case arises from an underlying action filed in 2003 by respondents,1 who are the heirs of the late musician and composer Autry De Walt, professionally known as Junior Walker (De Walt), against appellant Jobete Music Co., Inc. (Jobete). In the underlying action, respondents disputed the ownership of renewal copyrights of certain songs and sought a declaration as to which of several contracts between De Walt and Jobete were applicable. A jury found the most recent contract governed, and judgment was entered in favor of Jobete and affirmed on appeal. Although Jobete filed a memorandum of costs in the underlying action, it did not seek its attorney fees. Instead, over the next several years, Jobete unilaterally offset from the royalties payable to respondents amounts it claimed were incurred as attorney fees in the underlying action. In 2009, respondents sued Jobete for breach of contract and conversion. Following a bench trial based on stipulated evidence, the trial court entered judgment in favor of respondents, finding that Jobete was barred from seeking its attorney fees by not pursuing them in the underlying action. We agree that Jobete is no longer entitled to seek its attorney fees. We affirm the judgment in favor of respondents except as to their conversion claim.
May 6, 2013
Dismissal of Duke Ellington Royalty Suit Affirmed
Ellington v. EMI Music, No. 651558/10, NYLJ 1202598616249 (1st Dep't May 2, 2013)
The First Department affirmed dismissal of Duke Ellington heirs' breach of contract action against a group of music publishers. The dispute was based on a 1961 songwriter agreement, and called for an interpretation of paragraph 3(a) of the agreement which, where relevant, required payment to Ellington of "a sum equal to fifty (50 percent) percent of the net revenue actually received by the Second Party from…foreign publication" of Ellington's compositions. This is known in the music publishing industry as a "net receipts" arrangement by which a composer, such as Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers.
Fees that previously had been charged by independent foreign subpublishers under the instant net receipts agreement were now being charged by subpublishers owned by Defendant. Plaintiff asserted that Defendant had enabled itself to skim his claimed share of royalties from the Duke Ellington compositions by paying commissions to its affiliated foreign subpublishers before remitting the bargained-for royalty payments to Duke Ellington's heirs. In dismissing the complaint, the motion court declined to read into the royalty payment terms any distinction between affiliated and unaffiliated foreign subpublishers inasmuch as the contracting parties themselves chose not to make such a distinction. The First Department affirmed.
The Court found no ambiguity in the agreement which, by its terms, required EMI to pay Ellington's heirs 50 percent of the net revenue actually received from foreign publication of Ellington's compositions. "'Foreign publication' has one unmistakable meaning regardless of whether it is performed by independent or affiliated subpublishers. Given the plain meaning of the agreement's language, plaintiff's argument that foreign subpublishers were generally unaffiliated in 1961, when the agreement was executed, is immaterial."
The First Department affirmed dismissal of Duke Ellington heirs' breach of contract action against a group of music publishers. The dispute was based on a 1961 songwriter agreement, and called for an interpretation of paragraph 3(a) of the agreement which, where relevant, required payment to Ellington of "a sum equal to fifty (50 percent) percent of the net revenue actually received by the Second Party from…foreign publication" of Ellington's compositions. This is known in the music publishing industry as a "net receipts" arrangement by which a composer, such as Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers.
Fees that previously had been charged by independent foreign subpublishers under the instant net receipts agreement were now being charged by subpublishers owned by Defendant. Plaintiff asserted that Defendant had enabled itself to skim his claimed share of royalties from the Duke Ellington compositions by paying commissions to its affiliated foreign subpublishers before remitting the bargained-for royalty payments to Duke Ellington's heirs. In dismissing the complaint, the motion court declined to read into the royalty payment terms any distinction between affiliated and unaffiliated foreign subpublishers inasmuch as the contracting parties themselves chose not to make such a distinction. The First Department affirmed.
The Court found no ambiguity in the agreement which, by its terms, required EMI to pay Ellington's heirs 50 percent of the net revenue actually received from foreign publication of Ellington's compositions. "'Foreign publication' has one unmistakable meaning regardless of whether it is performed by independent or affiliated subpublishers. Given the plain meaning of the agreement's language, plaintiff's argument that foreign subpublishers were generally unaffiliated in 1961, when the agreement was executed, is immaterial."
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