Hendricks & Lewis PLLC v. Clinton, No. 13-35010 (9th Cir. June 23, 2014; amended Aug. 27, 2014 [decision]).
The 9th Circuit affirmed an order appointing a receiver and authorizing the sale of copyrights in four master sound recording owned by the musician George Clinton to satisfy judgment obtained by his former lawyers for past-due attorneys' fees. The 9th Circuit held that under Washington law, the copyrights were subject to execution to satisfy judgments against Clinton. Further, section 201(e) of the Copyright Act did not protect Clinton from the involuntary transfer of his copyrighted works. "Section 201(e) is of no help to Clinton because he is not the 'author' of the Masters within the meaning of the Copyright Act. Thang specifically agreed in its 1975 contract with Warner Bros. that Warner Bros. would be the sole owner of the master recordings resulting from the parties’ contract. Thang and Clinton were 'deemed [Warner Bros.’s]
employees for hire' in the same contract. As noted, the parties signed a substantially similar agreement in 1979, and it is uncontested that all four Masters were created under these agreements. *** [E]ven if the Masters were not originally 'works for hire,' § 201(e) protection does not apply where a copyright was
previously 'transferred voluntarily by that individual author.' There is no question that Clinton transferred any interest that he had in the Masters to Warner Bros., and, as part of a settlement arising from unrelated litigation, Warner Bros. subsequently agreed to transfer ownership back to Clinton. These voluntary transfers provide yet another basis for rejecting Clinton’s argument that he enjoys § 201(e) protection as the original author of the master sound recordings." Accordingly, it was not an abuse of discretion to appoint a receiver to manage or sell ownership of the copyrights. Clinton's defenses raise on appeal -- judicial estoppel and fraud on the court -- lacked merit. Other defenses were waived for failure to raise them below, and in any event lacked merit.
June 24, 2014
June 23, 2014
Injunction Entered On Use Of Platters Band Name
Herb Reed Enterprises, Inc. v. Monroe Powell's Platters, LLC, No. 2:11-cv-02010 (D. Nev. June 17, 2014).
The Court granted plaintiffs' motion for summary judgment, granting plaintiffs approximately $60,000 and enjoining defendants from using the mark THE PLATTERS in connection with any vocal group or live musical performance. First, the Court found that plaintiffs have common law rights in THE PLATTERS mark, even though they do not have a registered mark in THE PLATTERS, based on their registered mark HERB REED AND THE PLATTERS. There was no genuine issue of fact that plaintiffs owned interests in THE PLATTERS mark and that those interests were superior to defendants. Second, the court found a likelihood of confusion under the 9th Circuit test. Accordingly, a permanent injunction was appropriate. Damages were also awarded for both domestic and foreign profits.
The Court granted plaintiffs' motion for summary judgment, granting plaintiffs approximately $60,000 and enjoining defendants from using the mark THE PLATTERS in connection with any vocal group or live musical performance. First, the Court found that plaintiffs have common law rights in THE PLATTERS mark, even though they do not have a registered mark in THE PLATTERS, based on their registered mark HERB REED AND THE PLATTERS. There was no genuine issue of fact that plaintiffs owned interests in THE PLATTERS mark and that those interests were superior to defendants. Second, the court found a likelihood of confusion under the 9th Circuit test. Accordingly, a permanent injunction was appropriate. Damages were also awarded for both domestic and foreign profits.
Workshop Agreement Does Not Permit Attorneys Fees Or Indemnification
Bowen v. Paisley, No. 3:13-cv-0414 (M.D. Tenn. June 16, 2014).
The Court held that defendant's counterclaims for breach of contract would proceed, but their counterclaims for indemnification and attorney's fees would be dismissed. Plaintiff wrote and recorded a song and alleged that two popular country music artists (Brad Paisley and Carrie Underwood) violated her copyright interests. Plaintiff alleged that defendants gained access to her song when she performed it during a 2008 country music songwriting workshop in Nashville, in which two other defendants served as guest instructors. Those defendants alleged that s a condition of participation in the workshop, plaintiff signed a consent agreement, in which the plaintiff effectively waived her right to bring the copyright claims asserted, at least as they related to access gained in the workshop. First, the Court found that the defendants could not assert contractual indemnification under the agreement because it would lead to an "absurd result" of requiring plaintiff to defend the defendants against her own claims. Second, the Court held that it would permit the defendant's breach of contract claim -- based on a covenant not to sue provision -- to remain, but recognized that the claim would eventually lead to "a doctrinal thicket" as to its viability. Lastly, the Court held that the attorneys fees claim failed under the language of the contract.
The Court held that defendant's counterclaims for breach of contract would proceed, but their counterclaims for indemnification and attorney's fees would be dismissed. Plaintiff wrote and recorded a song and alleged that two popular country music artists (Brad Paisley and Carrie Underwood) violated her copyright interests. Plaintiff alleged that defendants gained access to her song when she performed it during a 2008 country music songwriting workshop in Nashville, in which two other defendants served as guest instructors. Those defendants alleged that s a condition of participation in the workshop, plaintiff signed a consent agreement, in which the plaintiff effectively waived her right to bring the copyright claims asserted, at least as they related to access gained in the workshop. First, the Court found that the defendants could not assert contractual indemnification under the agreement because it would lead to an "absurd result" of requiring plaintiff to defend the defendants against her own claims. Second, the Court held that it would permit the defendant's breach of contract claim -- based on a covenant not to sue provision -- to remain, but recognized that the claim would eventually lead to "a doctrinal thicket" as to its viability. Lastly, the Court held that the attorneys fees claim failed under the language of the contract.
Infringement Action Against Lady Gaga Dismissed; No Substantial Similarity
Francescatti v. Germanotta; No. 11-cv-520 (N.D. Ill. June 17, 2014).
The Court granted defendant Lady Gaga's motion to dimiss the copyright infringement case over Gaga's song "Judas", even though the Court found that defendants had access to plaintiff's song "Juda," because no reasonable trier of fact could find that the songs are substantially similar. With respect to access, the Court found that based on the nature and timing of a collaboration between Gaga and other defendants, a reasonable juror could find that there exists a nexus -- via a channel of communication -- between the parties and that therefore the defendants had an opportunity to hear the plaintiff's songs. Accordingly, defendants were not entitled to summary judgment on that ground. However, the Court found no substantial similarity. First, the Court undertook an extensive analysis of whether expert testimony was necessary, or permissible, to determine similarity under the ordinary observer test. The Court found that expert testimony was warranted because the songs are sufficiently complex, especially given the use of computer technology. Second, the Court undertook the extrinsic-intrinsic test and held that the songs are substantially similar. The songs do not share enough unique features to give rise to a breach of the duty not to copy another's work.
The Court granted defendant Lady Gaga's motion to dimiss the copyright infringement case over Gaga's song "Judas", even though the Court found that defendants had access to plaintiff's song "Juda," because no reasonable trier of fact could find that the songs are substantially similar. With respect to access, the Court found that based on the nature and timing of a collaboration between Gaga and other defendants, a reasonable juror could find that there exists a nexus -- via a channel of communication -- between the parties and that therefore the defendants had an opportunity to hear the plaintiff's songs. Accordingly, defendants were not entitled to summary judgment on that ground. However, the Court found no substantial similarity. First, the Court undertook an extensive analysis of whether expert testimony was necessary, or permissible, to determine similarity under the ordinary observer test. The Court found that expert testimony was warranted because the songs are sufficiently complex, especially given the use of computer technology. Second, the Court undertook the extrinsic-intrinsic test and held that the songs are substantially similar. The songs do not share enough unique features to give rise to a breach of the duty not to copy another's work.
June 9, 2014
6th Circuit: Bar Owner Liable For Vicarious Copyright Infringement
Broadcast Music, Inc. v. Meadowlake, Ltd. et al., No. 13-3933 (6th Cir. June 6, 2014) [decision].
The Sixth Circuit holds that an individual, who owned 95% a limited liability company that owned a restaurant that offered dancing and live music, was liable for vicarious copyright infringement (public performance right). As the company’s chief (95%) owner and the restaurant’s ultimate decision maker, the individual defendant had the right and ability to supervise the infringing performances. According to the 6th Circuit, "This case indeed falls within the heartland of vicarious liability." The Court rejected the defendant's argument that his son was the day-to-day manager of the restaurant, that he claimed ignorance of the infringement, and that ownership via a limited liability company shielded liability. "Either way, Roy profited from infringement at his restaurant while refusing to exercise his right to stop it. And so either way, Roy remains vicariously liable."
The Sixth Circuit holds that an individual, who owned 95% a limited liability company that owned a restaurant that offered dancing and live music, was liable for vicarious copyright infringement (public performance right). As the company’s chief (95%) owner and the restaurant’s ultimate decision maker, the individual defendant had the right and ability to supervise the infringing performances. According to the 6th Circuit, "This case indeed falls within the heartland of vicarious liability." The Court rejected the defendant's argument that his son was the day-to-day manager of the restaurant, that he claimed ignorance of the infringement, and that ownership via a limited liability company shielded liability. "Either way, Roy profited from infringement at his restaurant while refusing to exercise his right to stop it. And so either way, Roy remains vicariously liable."
June 5, 2014
DOJ To Review ASCAP & BMI Consent Decrees
Multiple news outlets are reporting that the Department of Justice, Antitrust Division, has agreed to open a review of the ASCAP and BMI consent decrees. See the DOJ announcement and ASCAP's statement.
May 27, 2014
Copyright Claim Dismissed Against Usher Because No Substantial Similarity
Edwards et al. v Usher Raymond IV et al., No. 1:13-cv-07985-DLC (S.D.N.Y. filed 05/23/14) [Doc. 36].
Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition. On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law. Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.
First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase. Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar. Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar. Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.
Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition. On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law. Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.
First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase. Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar. Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar. Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.
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