In re Petition of Pandora Media, Inc. [related to US v. ASCAP]; No. 1941-cv-01395 (S.D.N.Y. filed Dec.13, 2013) [Doc. 733].
EMI and Sony moved to intervene in the Pandora rate-court proceeding (ASCAP) after the Court's summary judgment opinion issued on September 17, 2013 in which the Court held that the Second Amended Final Judgment ("AFJ2") prevented ASCAP from withholding from Pandora the rights to compositions in its repertory while licensing those compositions to other users. In re Pandora Media, Inc., 12 Civ. 8035 (DLC), 2013 WL 5211927 (S.D.N.Y. Sept. 17, 2013) (“September 17 Opinion”). The summary judgment practice was precipitated by putative publisher partial withdrawals of rights from ASCAP.
The Court analyzed Rule 24 of the Federal Rules of Civil Procedure. It considered whether the publishers' motion to intervene was timely (mixed finding), and whether the publishers possess an interest related to the subject of the action (yes). Ultimately, the Court granted the motion to intervene on the condition that the Publishers "may not raise new arguments on appeal that were not raised by ASCAP, with the exception of the Section 106 of the Copyright Act argument".
December 16, 2013
December 5, 2013
Transfer Denied In Sirius Class Action Over Pre-72 Recordings
Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG (C.D. Cal. Dec. 3, 2013).
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
December 4, 2013
Country Music Infringement Claim Survives Dismissal
Bowen v. Paisley et al., No. 3:13-cv-0414 (M.D. Tenn. filed Dec. 3, 2013) [Doc. 58]
Plaintiff alleged that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that plaintiff
copyrighted and recorded. Defendants moved to dismiss. The Court denied defendant's motion to dismiss for failure to state a claim, finding that under the Iqbal standard, plaintiff had plausibly shown that, taken in combination, her lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material, and that based on the Court's own comparison of the two works that defendants' hooks which incorporate that potentially distinctive combination of elements, are “substantially similar”.
Plaintiff alleged that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that plaintiff
copyrighted and recorded. Defendants moved to dismiss. The Court denied defendant's motion to dismiss for failure to state a claim, finding that under the Iqbal standard, plaintiff had plausibly shown that, taken in combination, her lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material, and that based on the Court's own comparison of the two works that defendants' hooks which incorporate that potentially distinctive combination of elements, are “substantially similar”.
December 3, 2013
9th Circuit Reverses "Platters" Injunction Because No Presumption Of Irreparable Harm In Trademark Cases
Herb Reed Enterprises v. Florida Entertainment, No. 12-16868 (9th Cir. Dec. 2, 2013) [Decision].
The 9th Circuit reversed the district court’s grant of a preliminary injunction against defendants’ use of the mark “The Platters” in connection with a vocal group, holding that the likelihood of irreparable harm must be established, rather than presumed, by a plaintiff seeking injunctive relief in the trademark context, and that the record did not support a determination of the likelihood of irreparable harm. Likelihood of success can not be collapsed into irreparable harm. The 9th Circuit also found (affirming the district court) that: (i) earlier New York actions did not have res judicata effect -- there was no claim or issue preclusion; (ii) the claim was not barred by laches; (iii) Plaintiff had not abandoned the trademark.
The 9th Circuit reversed the district court’s grant of a preliminary injunction against defendants’ use of the mark “The Platters” in connection with a vocal group, holding that the likelihood of irreparable harm must be established, rather than presumed, by a plaintiff seeking injunctive relief in the trademark context, and that the record did not support a determination of the likelihood of irreparable harm. Likelihood of success can not be collapsed into irreparable harm. The 9th Circuit also found (affirming the district court) that: (i) earlier New York actions did not have res judicata effect -- there was no claim or issue preclusion; (ii) the claim was not barred by laches; (iii) Plaintiff had not abandoned the trademark.
Aimee Mann Copyright Claim Survives Dismissal Based On Terminated License
Aimee Mann v. MediaNet Digital, Inc., et al., No. 2:13-cv-05269 (C.D. Cal. filed 11/27/13) [Doc. 26].
Plaintiff Aimee Mann (“Mann”), a songwriter and recording artist, brought this copyright infringement action against Defendant MediaNet Digital, Inc. (“MediaNet”), f/k/a MusicNet, a distributor of streaming music, online radio, and music downloads to companies like Songza, Stub Hub, Soundtracker, MTV, Yahoo Music, and Time Warner Cable (among others). MediaNet moved to dismiss the copyright claims and Plaintiff's claim for rescission of a license agreement. The Court denied the motion to dismiss the copyright claims, but dismissed the rescission claim with leave to replead.
On the copyright claims, MediaNet argued that Mann’s claim for direct infringement should be dismissed because: (i) MediaNet had a valid license at all relevant times and therefore cannot be liable for copyright
infringement, and (ii) the License Agreement was not terminated on December 4, 2006 as a matter of
law. The Court found that MediaNet did not have a statutory compulsory license (17 U.S.C. 115). The Court also found that the 2003 License Agreement was no longer in effect. Relying on New York General Obligations Law § 5-903, Mann asserted that because MediaNet failed to alert her to the existence of the auto-renewal provision, the License Agreement was not automatically renewed after its initial term ended on December 4, 2006. The Court agreed that the auto-renewal of the License Agreement is unenforceable under § 5-903. As such, Mann’s allegation that MediaNet exploited her pre-December 5, 2003 and post-December 4, 2006 compositions after the initial term of the License Agreement stated a claim for copyright infringement. The Court further found that Mann had stated claims for secondary copyright liability (contributory, inducing and vicarious liability).
However, Mann's claim for rescission was dismissed with leave to replead. The Court found rescission is an equitable remedy and that that Mann had failed to explain why the non-payment of royalties could not be adequately remedied by monetary damages. "This failure is fatal to her rescission claim."
Plaintiff Aimee Mann (“Mann”), a songwriter and recording artist, brought this copyright infringement action against Defendant MediaNet Digital, Inc. (“MediaNet”), f/k/a MusicNet, a distributor of streaming music, online radio, and music downloads to companies like Songza, Stub Hub, Soundtracker, MTV, Yahoo Music, and Time Warner Cable (among others). MediaNet moved to dismiss the copyright claims and Plaintiff's claim for rescission of a license agreement. The Court denied the motion to dismiss the copyright claims, but dismissed the rescission claim with leave to replead.
On the copyright claims, MediaNet argued that Mann’s claim for direct infringement should be dismissed because: (i) MediaNet had a valid license at all relevant times and therefore cannot be liable for copyright
infringement, and (ii) the License Agreement was not terminated on December 4, 2006 as a matter of
law. The Court found that MediaNet did not have a statutory compulsory license (17 U.S.C. 115). The Court also found that the 2003 License Agreement was no longer in effect. Relying on New York General Obligations Law § 5-903, Mann asserted that because MediaNet failed to alert her to the existence of the auto-renewal provision, the License Agreement was not automatically renewed after its initial term ended on December 4, 2006. The Court agreed that the auto-renewal of the License Agreement is unenforceable under § 5-903. As such, Mann’s allegation that MediaNet exploited her pre-December 5, 2003 and post-December 4, 2006 compositions after the initial term of the License Agreement stated a claim for copyright infringement. The Court further found that Mann had stated claims for secondary copyright liability (contributory, inducing and vicarious liability).
However, Mann's claim for rescission was dismissed with leave to replead. The Court found rescission is an equitable remedy and that that Mann had failed to explain why the non-payment of royalties could not be adequately remedied by monetary damages. "This failure is fatal to her rescission claim."
November 19, 2013
Madonna's "Vogue" Does Not Infringe Horn-Hit
VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., No. 12-cv-05967 (C.D. Cal. filed 11/18/2013) [Doc. 116].
Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis. Accordingly, defendants were granted summary judgment.
The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original. The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection. "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".
The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis. "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial." Lastly, there was also evidence of independent creation.
Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis. Accordingly, defendants were granted summary judgment.
The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original. The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection. "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".
The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis. "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial." Lastly, there was also evidence of independent creation.
November 12, 2013
NMPA Take Down Notices Sent To Lyric Sites
Billboard reports that the National Music Publishers Association ("NMPA") has sent take-down notices to 50 commercial lyric sites operating without licenses. The article highlights the site RapGenius. The article further reports that David Israelite, Chief Executive of the NMPA, said that the take-down notices are a precursor to the filing of lawsuits against the unlicensed sites for copyright infringement.
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