Dear Readers,
Effective June 2016, all new posts to "On The Cover Songs" are being made on my new website at http://jgreenbergerlaw.com/blog/
All existing/prior posts are also available on my new website.
Thank you for your support throughout the years. It has been a pleasure updating you on music-litigation cases since 2007, and I hope that you continue reading the blog on its new platform.
-- Jordan
jordan@jgreenbergerlaw.comwww.jgreenbergerlaw.com/blog/
June 7, 2016
May 16, 2016
ASCAP Settles DOJ Action Concerning Exclusive Licensing Agreements
USA v. ASCAP, No. 41-1395 (S.D.N.Y. May 12, 2016) (Doc. 749).
The Dep't of Justice and ASCAP have settled a claim concerning approximately 150 ASCAP agreements that granted the performing rights organization exclusive licensing rights allegedly in violation of an earlier consent decree. The settlement prohibits ASCAP form entering into any agreement under which a songwriter, composer, or music publisher grants ASCAP the exclusive right to license the right of public performance in musical works, and further limits the licensing activities of board members and music publishers. Further, ASCAP agreed to pay $1.75 million.
The Dep't of Justice and ASCAP have settled a claim concerning approximately 150 ASCAP agreements that granted the performing rights organization exclusive licensing rights allegedly in violation of an earlier consent decree. The settlement prohibits ASCAP form entering into any agreement under which a songwriter, composer, or music publisher grants ASCAP the exclusive right to license the right of public performance in musical works, and further limits the licensing activities of board members and music publishers. Further, ASCAP agreed to pay $1.75 million.
May 3, 2016
Band's Shut-Down Facebook Page Not A "Use In Commerce"; Injunction Vacated
Emerald City Mgmt., LLC v. Kahn, No. 15-40446 (5th Cir. Mar. 8, 2016) [decision].
The Fifth Circuit vacated a preliminary injunction ordering the leader of a band called "Downtown Fever" to transfer control of a Facebook account to the band's manager who had registered the mark "Downtown Fever." The lower court had issued an injunction barring defendant from using the band name, and the defendant thereafter voluntarily de-activated the band's Facebook page. Then, the lower court found that the plaintiff should be granted an injunction ordering the defendant to give control of the Facebook page. However, the appeals court found that was an abuse of discretion because "neither shutting down a Facebook account nor blocking administrator access to a Facebook account constitutes 'use in commerce' of a trademark. Because the Facebook page was not accessible to anyone, the defendant was not using the trademark.
The Fifth Circuit vacated a preliminary injunction ordering the leader of a band called "Downtown Fever" to transfer control of a Facebook account to the band's manager who had registered the mark "Downtown Fever." The lower court had issued an injunction barring defendant from using the band name, and the defendant thereafter voluntarily de-activated the band's Facebook page. Then, the lower court found that the plaintiff should be granted an injunction ordering the defendant to give control of the Facebook page. However, the appeals court found that was an abuse of discretion because "neither shutting down a Facebook account nor blocking administrator access to a Facebook account constitutes 'use in commerce' of a trademark. Because the Facebook page was not accessible to anyone, the defendant was not using the trademark.
April 19, 2016
Former Commodores Band-Member Properly Enjoined From Using "Commodores" Or Performing Under "Commodores" Name
Commodores Entertainment Corp. v. McClary, No. 14-14883 (11th Cir. Apr. 15, 2016).
The 11th Circuit affirmed a preliminary injunction enjoining the defendants from using the "The Commodores" mark and from performing under the name "The Commodores featuring Thomas McClary" or "The 2014 Commodores." The Commodores were a popular funk/soul group on the Motown label in the 1970s (hits included Brick House and Three Times a Lady). In the early 1980s, two fo the original members of hte group left to embark on solo careers, including defendant McClary. The remaining members, as the plaintiff corporation, continued to perform and registered four trademarks. In 2014, defendant McClaray began performing songs made famous by the band in the 1970s with his own band called "The Commodores featuring Thomas McClary" or "The 2014 Commodores." This use gave rise to litigation, and the lower court granted plaintiff a preliminary injunction. The 11th Circuit affirmed, finding that defendant's use was likely to confuse and therefore plaintiff was likely to succeed on the merits, and further that the plaintiff had standing and had made a showing of irreparable harm. Lastly, the Court found that there was no error with the distric court's conclusion that the defendants may be enjoined extraterritorially (i.e., outside of the United States).
The 11th Circuit affirmed a preliminary injunction enjoining the defendants from using the "The Commodores" mark and from performing under the name "The Commodores featuring Thomas McClary" or "The 2014 Commodores." The Commodores were a popular funk/soul group on the Motown label in the 1970s (hits included Brick House and Three Times a Lady). In the early 1980s, two fo the original members of hte group left to embark on solo careers, including defendant McClary. The remaining members, as the plaintiff corporation, continued to perform and registered four trademarks. In 2014, defendant McClaray began performing songs made famous by the band in the 1970s with his own band called "The Commodores featuring Thomas McClary" or "The 2014 Commodores." This use gave rise to litigation, and the lower court granted plaintiff a preliminary injunction. The 11th Circuit affirmed, finding that defendant's use was likely to confuse and therefore plaintiff was likely to succeed on the merits, and further that the plaintiff had standing and had made a showing of irreparable harm. Lastly, the Court found that there was no error with the distric court's conclusion that the defendants may be enjoined extraterritorially (i.e., outside of the United States).
April 14, 2016
Attorney's Fees Denied to Prevailing Gaye Family in Blurred Lines Case
Williams v. Bridgeport Music, No. CV13-6004 (C.D. Cal. Apr. 12, 2016).
After winning a trial, the Gaye Family was denied its application for attorney's fees under section 505 the Copyright Act. Also, the taxable costs requested by the Gaye Family, as the prevailing party, were reduced. As to attorney's fees, the Court underwent an analysis of the "Fogerty" & "Lieb" factors, and found that the factors did not weigh in favor of the Gaye Family as the prevailing party. "Beyond the success on the merits, little else supports their position. This case presented novel issues. How they would be determined was not, even with hindsight, something that was clear."
After winning a trial, the Gaye Family was denied its application for attorney's fees under section 505 the Copyright Act. Also, the taxable costs requested by the Gaye Family, as the prevailing party, were reduced. As to attorney's fees, the Court underwent an analysis of the "Fogerty" & "Lieb" factors, and found that the factors did not weigh in favor of the Gaye Family as the prevailing party. "Beyond the success on the merits, little else supports their position. This case presented novel issues. How they would be determined was not, even with hindsight, something that was clear."
Federal 2nd Circuit Certifies Pre-72 Question To New York's Highest Court in Flo & Eddie Case
Flo & Eddie v. SiriusXM Radio, 15-1164cv (2d Cir. Apr. 13, 2016).
In the "Turtles" case against Sirius for common law copyright infringement of pre-1972 sound recordings under New York common-law, the Second Circuit certified the question to New York's highest court, the Court of Appeals: "This case presents a significant and unresolved issue of New York copyright law: Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right? Because this question is important, its answer is unclear, and its resolution controls the present appeal, we reserve decision and certify this question to the New York Court of Appeals."
The lower court had denied Sirius' motion for summary judgment, and the Second Circuit reviewed the matter de novo. The Circuit stated "the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership." However, New York's highest court has not ruled on the issue in any prior case, and without such guidance, the Circuit was "in doubt" whether New York provides such rights under common law. Thus, the Court found that certification to the New York Court of Appeals was appropriate. Accordingly, the Court reserved decision and certified the following question for decision by the New York Court of Appeals:
"Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?"
In the "Turtles" case against Sirius for common law copyright infringement of pre-1972 sound recordings under New York common-law, the Second Circuit certified the question to New York's highest court, the Court of Appeals: "This case presents a significant and unresolved issue of New York copyright law: Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right? Because this question is important, its answer is unclear, and its resolution controls the present appeal, we reserve decision and certify this question to the New York Court of Appeals."
The lower court had denied Sirius' motion for summary judgment, and the Second Circuit reviewed the matter de novo. The Circuit stated "the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership." However, New York's highest court has not ruled on the issue in any prior case, and without such guidance, the Circuit was "in doubt" whether New York provides such rights under common law. Thus, the Court found that certification to the New York Court of Appeals was appropriate. Accordingly, the Court reserved decision and certified the following question for decision by the New York Court of Appeals:
"Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?"
March 21, 2016
Pre-72 Class Actions Stayed In Light Of Turtles' Appeals
Sheridan v. iHeartMedia, 15-cv-7574; Sheridan v. Sirius XM, 15-cv-7576 (D.N.J. Mar. 16, 2016).
In a putative class action, the owners of sound recordings made before 1972 brought copyright infringement and unjust enrichment claims under New Jersey law against defendants for broadcasting their recordings without receiving authorization or compensation. Defendants moved to stay the case pending the resolution of three similar actions currently before the U.S. Courts of Appeals for the 2nd, 9th and 11th Circuits. The court granted the stay. "Most importantly, the Court finds that staying this case until the Second, Ninth, and Eleventh Circuits have ruled on related cases will more likely than not simplify the issues presented here and promote judicial economy."
In a putative class action, the owners of sound recordings made before 1972 brought copyright infringement and unjust enrichment claims under New Jersey law against defendants for broadcasting their recordings without receiving authorization or compensation. Defendants moved to stay the case pending the resolution of three similar actions currently before the U.S. Courts of Appeals for the 2nd, 9th and 11th Circuits. The court granted the stay. "Most importantly, the Court finds that staying this case until the Second, Ninth, and Eleventh Circuits have ruled on related cases will more likely than not simplify the issues presented here and promote judicial economy."
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