Stewart v. Screen Gems-EMI Music, Inc., No. 3:14-cv-04805 (N.D. Cal. filed Mar. 2, 2015) [Doc. 45].
Plaintiff alleges that defendants -- various EMI defendants -- wrongfully withheld publishing royalties to the song "Daydream Believer" written by Plaintiff's late-husband. The claims arise out of a 1967 songwriter's agreement, which has a "net receipts" (not "at source") arrangement, meaning that the publisher is only obligated to remit to the songwriter a certain percentage of revenue the publisher actually receives after deducting applicable fees and costs. Plaintiff contended that Defendants were improperly deducting from the song's foreign receipts fees that defendant paid to affiliated foreign sub-publishers that are alter egos of defendant and operate as part of a single enterprise (i.e., defendant was effectively paying itself and then deducting those payments from the receipts to reduce the "net receipts"). Defendants moved to dismissed. The Court granted the motion to dismiss of defendants EMI and EMI North America for lack of personal jurisdiction; but, found that Plaintiff had stated a claim against defendant Screen Gems-EMI for breach of contract, breach of the implied covenant of good faith and fair dealing, and for an accounting.
March 6, 2015
February 26, 2015
State-Law Copyright And Unfair Competition Claims Relating To In-Flight Music Services Not Preempted
UMG Recordings v. Global Eagle Entertainment, No. 14-03466 MMM (C.D. Cal. dated Feb. 23, 2015).
The Court denied defendant airline's motion to dismiss claims for copyright infringement under California law, along with California unfair competition claims, finding that even if in-flight entertainment qualifies as a service as that term is used in the Airline Deregulation Act, any connection between the service and plaintiffs' claims was too tenuous and remote to justify preemption.
Plaintiffs were various record companies and music publishers. They contended that defendants provided “various airlines” sound recordings and music videos that the airlines then publicly perform to their passengers. Defendants contended that the court should dismiss the record company plaintiffs’ state law copyright infringement and unfair competition claims because the claims were preempted by the Deregulation Act. Congress enacted the Deregulation Act in 1978 after determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation services."
The Court denied defendant airline's motion to dismiss claims for copyright infringement under California law, along with California unfair competition claims, finding that even if in-flight entertainment qualifies as a service as that term is used in the Airline Deregulation Act, any connection between the service and plaintiffs' claims was too tenuous and remote to justify preemption.
Plaintiffs were various record companies and music publishers. They contended that defendants provided “various airlines” sound recordings and music videos that the airlines then publicly perform to their passengers. Defendants contended that the court should dismiss the record company plaintiffs’ state law copyright infringement and unfair competition claims because the claims were preempted by the Deregulation Act. Congress enacted the Deregulation Act in 1978 after determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation services."
February 25, 2015
Bob Marley Heirs Succeed On Appeal In Merchandising Case
Fifty-Six Hope Road Music v. A.V.E.L.A., No 12-17502 (9th Cir. Feb. 20, 2015).
The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise. Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court. The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights. Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful. Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.
The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise. Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court. The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights. Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful. Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.
February 23, 2015
Limited Permanent Injunction Entered In Beastie Boys v. Monster Case
Beastie Boys v. Monster Energy, No. 12-cv-06065 (S.D.N.Y. filed 02/20/15) [Doc. 201].
After prevailing at trial, the Court granted the Beastie Boys' motion for a permanent injunction, but agreed with Monster that the injunction "must be tightly limited to cover only the infringing video." The Beastie Boys had sought to broadly enjoin Monster from using the Beastie Boys' music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argued that, if the Court decided to issue a permanent injunction at all, that relief should be limited to the video at issue in the case. The Court applied the traditional four-factor test in exercising its equitable discretion to grant such relief, and found that "In the Court's view, the injunction the Beastie Boys propose is highly overbroad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement."
After prevailing at trial, the Court granted the Beastie Boys' motion for a permanent injunction, but agreed with Monster that the injunction "must be tightly limited to cover only the infringing video." The Beastie Boys had sought to broadly enjoin Monster from using the Beastie Boys' music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argued that, if the Court decided to issue a permanent injunction at all, that relief should be limited to the video at issue in the case. The Court applied the traditional four-factor test in exercising its equitable discretion to grant such relief, and found that "In the Court's view, the injunction the Beastie Boys propose is highly overbroad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement."
NYTimes Article re Pandora
Ben Sisario, Pandora Making Bid to Unruffle Music World (Feb. 23, 2015 New York Times, B1)
This article discusses how Pandora is trying to work with labels and artist managers by opening its performance data, and also by experimenting with artist promotions.
This article discusses how Pandora is trying to work with labels and artist managers by opening its performance data, and also by experimenting with artist promotions.
February 11, 2015
Everyday I'm Hustlin' Lawsuit Against LMFAO Survives
Roberts v. Gordy, No. 13-24700 (S.D. Fla. dated Feb. 5, 2015).
Performer Rick Ross brought this action against the group LMFAO over use of "Everyday I'm Hustlin'" / "Everyday I'm Shufflin'" in defendant's song Party Rock Anthem. LMFAO moved to dismiss on the pleadings plaintiff's copyright and trademark infringement claims. The Court denied the motion, finding at this stage of the proceedings, plaintiff's allegations were sufficient. Whether the phrase was copyrightable, or the works were substantially similar, were not appropriate for a motion on the pleadings as those issues would require a fact intensive inquiry. Similarly, a factual inquiry was required on the trademark claim as to whether the phrase had acquired distinctiveness/secondary meaning.
Performer Rick Ross brought this action against the group LMFAO over use of "Everyday I'm Hustlin'" / "Everyday I'm Shufflin'" in defendant's song Party Rock Anthem. LMFAO moved to dismiss on the pleadings plaintiff's copyright and trademark infringement claims. The Court denied the motion, finding at this stage of the proceedings, plaintiff's allegations were sufficient. Whether the phrase was copyrightable, or the works were substantially similar, were not appropriate for a motion on the pleadings as those issues would require a fact intensive inquiry. Similarly, a factual inquiry was required on the trademark claim as to whether the phrase had acquired distinctiveness/secondary meaning.
Interlocutory Appeal Granted In Turtles/Sirius Case
Flo & Eddie v. Sirius, No. 1:13-cv-05784-CM (SDNY filed 02/10/15) (Doc. 118).
The District Court certified for interlocutory appeal to the Second Circuit the question: "Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle or rights attendant to their copyright, the right to exclusive public performance of those sound recordings?" Having certified the question for interlocutory appeal, the District Court stayed all proceedings pending a decision by the Second Circuit.
The District Court certified for interlocutory appeal to the Second Circuit the question: "Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle or rights attendant to their copyright, the right to exclusive public performance of those sound recordings?" Having certified the question for interlocutory appeal, the District Court stayed all proceedings pending a decision by the Second Circuit.
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