Two suits were filed yesterday in SDNY against various record labels:
Grant v. Warner Music Group Corp. and Atlantic Recording Corp., No. 13-cv-4449 (alleging violation of the Fair Labor Standards Act concerning failure to pay employees minimum wages and overtime compensation).
Slip-N-Slide Records Inc. v. The Island Def Jam Music Group, No. 13-cv-4450 (seeking an accounting, declaratory judgment and claiming breach of fiduciary duty relating to defendant's agreement to manufacture and distribute sound recordings of plaintiff's artists).
Showing posts with label Accounting. Show all posts
Showing posts with label Accounting. Show all posts
June 28, 2013
December 13, 2012
Toto's Royalty Suit Against Sony Limited By Magistrate
Toto, Inc. v. Sony Music Entertainment, No. 12-cv-1434-LAK-AJP (SDNY report and recommendation Dec. 11, 2012).
Plaintiff Toto brought the action against Sony Music based on a dispute over the amount of royalties owed under the parties' recording contract. Sony moved to dismiss, and the motion was granted in part and denied in part. The primary issue in the case ise the royalty rate for music distributed through download and mastertone providers (e.g., iTunes, eMusic, Amazon.com and Verizon Wireless).
The magistrate judge found that Toto's first claim based on royalty accountings for the audit period should be dismissed as contractually time barred. The parties agreement had a 3 year limitation period (i.e., claims had to be brought within 3 years from the royalty report). Toto's argument that August 2010 and December 2011 documentation restarted the time limitation was unavailing. However, the magistrate judge found that the portion of Toto's first claim based on royalty accountings for the post-audit period should not be dismissed with respect to the digital download issue. In other words, Toto stated a claim for breach of the recording contract for the period within the contractually agreed to 3 year limitation period.
The magistrate judge also found that Toto failed to plead the elements of equitable estoppel. The Court held that purposefully delaying an audit was not a ground for invoking equitable estoppel. Also, participation in settlement negotiations was not a ground for invoking equitable estoppel.
The magistrate judge also found that Toto's claim for breach of the implied covenant of good faith and fair dealing should be dismissed. The claim did not state a distinct cause of action based on a separate set of facts and was not independent of the breach of contract claim. The good faith and fair dealing claim was duplicative of the breach of contract claim.
Plaintiff Toto brought the action against Sony Music based on a dispute over the amount of royalties owed under the parties' recording contract. Sony moved to dismiss, and the motion was granted in part and denied in part. The primary issue in the case ise the royalty rate for music distributed through download and mastertone providers (e.g., iTunes, eMusic, Amazon.com and Verizon Wireless).
The magistrate judge found that Toto's first claim based on royalty accountings for the audit period should be dismissed as contractually time barred. The parties agreement had a 3 year limitation period (i.e., claims had to be brought within 3 years from the royalty report). Toto's argument that August 2010 and December 2011 documentation restarted the time limitation was unavailing. However, the magistrate judge found that the portion of Toto's first claim based on royalty accountings for the post-audit period should not be dismissed with respect to the digital download issue. In other words, Toto stated a claim for breach of the recording contract for the period within the contractually agreed to 3 year limitation period.
The magistrate judge also found that Toto failed to plead the elements of equitable estoppel. The Court held that purposefully delaying an audit was not a ground for invoking equitable estoppel. Also, participation in settlement negotiations was not a ground for invoking equitable estoppel.
The magistrate judge also found that Toto's claim for breach of the implied covenant of good faith and fair dealing should be dismissed. The claim did not state a distinct cause of action based on a separate set of facts and was not independent of the breach of contract claim. The good faith and fair dealing claim was duplicative of the breach of contract claim.
March 9, 2010
My Boyfriend's Back
Sirico v. F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (1st Dep't Mar. 4, 2010).
Sirico v F
Singers of the 1960s hit "My Boyfriend's Back" sues producer of the recording concerning royalties. On appeal of denial of motion for renewal, the Appellate Division addresses plaintiff's New York breach of contract, breach of implied contract, unjust enrichment, accounting, rescission, and right of privacy statutory claims. Specifically at issue is whether summary judgment was appropriate based on limited discovery and problematic affidavits. The court also addresses laches, statute of limitations, limitation on equitable claims.
June 17, 2008
V2 Royalties Suit - NY State
Frederick Hibbert v. V2 Records Inc., No. 08-108334 (Sup.Ct., N.Y. Co. complaint filed 6/16/2008):
Alleged breach of a recording agreement: defendant failed to furnish accountings of the sale of the plaintiff's recording "True Love" as well as royalties owed from the album, on which the plaintiff performed with Bonnie Raitt and Eric Clapton.
Alleged breach of a recording agreement: defendant failed to furnish accountings of the sale of the plaintiff's recording "True Love" as well as royalties owed from the album, on which the plaintiff performed with Bonnie Raitt and Eric Clapton.
June 11, 2008
50 Cent's Girlfriend - Not Evicted (Yet)
Rapper 50-Cent's Girlfriend Granted Interim Stay of Eviction From Home
Tompkins v. Jackson, No. 102255-2006, 6/11/08 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided May 14, 2008):
This court adopts the view that unmarried cohabitants may lawfully contract concerning their financial and other matters relevant to their relationship, subject to the rules of contract law, except where sexual services constitute the only consideration for the agreement [cit. om.]. Therefore, the complaint alleges sufficient services rendered by the plaintiff, which are non-sexual in nature and separable from the parties' relationship, such that a breach of contract claim in this regard supports plaintiff's request for an interim stay.
The court also found that the imposition of a constructive trust concerning the parties house in Dix Hills (NY), a partition of same, an accounting, quantum meruit for services performed, and damages for unjust enrichment were sufficiently plead in Plaintiff's complaint to warrant preliminary injunctive relief.
Tompkins v. Jackson, No. 102255-2006, 6/11/08 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided May 14, 2008):
This court adopts the view that unmarried cohabitants may lawfully contract concerning their financial and other matters relevant to their relationship, subject to the rules of contract law, except where sexual services constitute the only consideration for the agreement [cit. om.]. Therefore, the complaint alleges sufficient services rendered by the plaintiff, which are non-sexual in nature and separable from the parties' relationship, such that a breach of contract claim in this regard supports plaintiff's request for an interim stay.
The court also found that the imposition of a constructive trust concerning the parties house in Dix Hills (NY), a partition of same, an accounting, quantum meruit for services performed, and damages for unjust enrichment were sufficiently plead in Plaintiff's complaint to warrant preliminary injunctive relief.
April 7, 2008
Oh, Nelly!
Juan Antonio Castro Rios p/k/a/ Tony Tun Tun v. Coalition Music, LLC et. al, No. 1:08-cv-20922-AJ (S.D.Fla filed Apr. 4, 2008).
Allegations:
Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.
Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.
The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.
Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.
Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".
[Request copy of the complaint]
Allegations:
Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.
Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.
The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.
Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.
Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".
[Request copy of the complaint]
March 11, 2008
A&E Doesn't Like the Way You Count
New York Supreme Court, New York County -- Complaint filed by A&E Television for breach of an administration agreement with Signature Sound, Inc., and subsequent breach of a termination agreement by defendants, who allegedly failed failed to forward the plaintiff quarterly statements of account with pay-outs itemized as is the custom of the television music industry for the musical works for which defendant was receiving royalties.
According to Defendant's website, they are "the most active music clearance and licensing company on the East Coast. We research music rights and secure all licenses and permissions for the use of copyrighted works and recordings on television, motion pictures, commercials, corporate productions and the Internet"
[A & E Television Networks v. Signature Sound Inc. aka North Hollow Music; Elliot Schrager; filed 3/10/2008; No. 08-600711]
According to Defendant's website, they are "the most active music clearance and licensing company on the East Coast. We research music rights and secure all licenses and permissions for the use of copyrighted works and recordings on television, motion pictures, commercials, corporate productions and the Internet"
[A & E Television Networks v. Signature Sound Inc. aka North Hollow Music; Elliot Schrager; filed 3/10/2008; No. 08-600711]
February 25, 2008
Co-Authorship Dispute Over Composition Performed by System of a Down
In Maxwood Music Limited v. Malakian et al., case no. 1:08-cv-01730-RWS (S.D.N.Y. complaint filed Feb. 21, 2008), the assignee of copyright interests in various compositions by Casey Chmielinksi p/k/a/ Casey Chaos seeks a declaratory judgment against System of a Down members and related publishing companies.
The dispute arises out of the hit song "B.Y.O.B", the first single on the System of a Down album entitled Mezmerize, and winner of the 2005 GRAMMY Award for "Best Hard Rock Performance". (Notably, Chaos recieved a certificate from the National Academy of Recording Arts and Sciences recognizing his participation as a songwriter of the GRAMMY Award-winning song.)
The complaint alleges that Chaos and Daron Malakian, lead guitarist of the System of a Down, collaborated on an independent project entiled "Scars on Broadway", during which the two wrote approximately 14 songs. "At all times, Malakian and Chaos considered themselves the sole co-authors of 'Scars on Broadway' and each of the individual compositions written for it, including the Composition [B.Y.O.B.], and intended that they be joint authors of those musical works." (Compl. para. 14). However, the project was "put...on hold while they each returned to their own music for their respective bands." (Id. at 17.)
Unbeknownst to Chaos, B.Y.O.B. was later recorded by System of a Down and released as a single to promote Mezmerize, an album that has sold millions worldwide.
Chaos was not listed in the credits for the Single or the Album as a co-author of the Composition. Upon the release of the Album, however, Malakian's publishing company [Sony] filed a registration with the Copyright Office for the Composition that explicitly listed Chaos as an author together with Malakian.
...
Sony also registered Chaos as a co-author with the relevant public performance societies in the United States and United Kingdom that collect royalties for songwriters generated from public performances of their compositions.
(Id. at 21-22.)
Based on the above, Plaintiff (as assignee of Chaos' copyright interests) seeks a declaratory judgment that B.Y.O.B. was co-authored by Chaos and Malakian, without the participation of any other party; further, plaintiff seeks a declaration that Chaos owned (and Plaintiff now owns by virtue of an assignment) an equal and undivided 50% share of B.Y.O.B. Lastly, plaintiff seeks an accounting.
The theme from plaintiff's complaint is clear: if Chaos was not an equal-share co-author, why was he listed with both the Copyright Office and the public performance societies as a co-author?
An interesting aside - why did defendants consent to personal jurisdiction in the Southern District of New York?
The dispute arises out of the hit song "B.Y.O.B", the first single on the System of a Down album entitled Mezmerize, and winner of the 2005 GRAMMY Award for "Best Hard Rock Performance". (Notably, Chaos recieved a certificate from the National Academy of Recording Arts and Sciences recognizing his participation as a songwriter of the GRAMMY Award-winning song.)
The complaint alleges that Chaos and Daron Malakian, lead guitarist of the System of a Down, collaborated on an independent project entiled "Scars on Broadway", during which the two wrote approximately 14 songs. "At all times, Malakian and Chaos considered themselves the sole co-authors of 'Scars on Broadway' and each of the individual compositions written for it, including the Composition [B.Y.O.B.], and intended that they be joint authors of those musical works." (Compl. para. 14). However, the project was "put...on hold while they each returned to their own music for their respective bands." (Id. at 17.)
Unbeknownst to Chaos, B.Y.O.B. was later recorded by System of a Down and released as a single to promote Mezmerize, an album that has sold millions worldwide.
Chaos was not listed in the credits for the Single or the Album as a co-author of the Composition. Upon the release of the Album, however, Malakian's publishing company [Sony] filed a registration with the Copyright Office for the Composition that explicitly listed Chaos as an author together with Malakian.
...
Sony also registered Chaos as a co-author with the relevant public performance societies in the United States and United Kingdom that collect royalties for songwriters generated from public performances of their compositions.
(Id. at 21-22.)
Based on the above, Plaintiff (as assignee of Chaos' copyright interests) seeks a declaratory judgment that B.Y.O.B. was co-authored by Chaos and Malakian, without the participation of any other party; further, plaintiff seeks a declaration that Chaos owned (and Plaintiff now owns by virtue of an assignment) an equal and undivided 50% share of B.Y.O.B. Lastly, plaintiff seeks an accounting.
The theme from plaintiff's complaint is clear: if Chaos was not an equal-share co-author, why was he listed with both the Copyright Office and the public performance societies as a co-author?
An interesting aside - why did defendants consent to personal jurisdiction in the Southern District of New York?
February 19, 2008
Everyday (I Have the Blues)
Last week, William "Count" Basie's testamentary trust (as successor in interest) and a number of other musical luminaries filed a complaint in New York State Supreme Court, New York County (Manhattan) against the Universal Music Group seeking both damages and equitably relief arising out of UMG's "continuous systematic and callous disregard of the plaintiff's rights." Additionally, the complaint alleges breach of contract, and the issuing of false statements "with the hope of suppressing" plaintiff's earnings (i.e., royalties). Copies of the complaint are available upon request.
[The William Basie testamentary trust as successor in interest to William "Count" Basie; the estate of Sarah Vaughan; Keep Swingin' Inc. as successor in interest to Woody Herman; Patti Page; Kitty Kallen; John Mills obo The Mills Brothers; The Claire and Lester Brown testamentary trust as successor in interest to Les Brown; the estate of Jerry Murad; the estate of Sister Rosetta Tharpe; Marcia Laine as successor in interest to Frankie Laine; Tony Martin; the estate of Benny Goodman; Dick Hyman; Richard Hayman v. UMG Recordings Inc.; Universal Music Group Inc.; filed 2/14/2008; case no. 08-600461]
[The William Basie testamentary trust as successor in interest to William "Count" Basie; the estate of Sarah Vaughan; Keep Swingin' Inc. as successor in interest to Woody Herman; Patti Page; Kitty Kallen; John Mills obo The Mills Brothers; The Claire and Lester Brown testamentary trust as successor in interest to Les Brown; the estate of Jerry Murad; the estate of Sister Rosetta Tharpe; Marcia Laine as successor in interest to Frankie Laine; Tony Martin; the estate of Benny Goodman; Dick Hyman; Richard Hayman v. UMG Recordings Inc.; Universal Music Group Inc.; filed 2/14/2008; case no. 08-600461]
February 13, 2008
Dick Clark Seeks Removal to Federal Court
On January 4, 2008, crooner Brian K. Evans filed suit in California state court against the legendary Dick Clark's production company on three causes of action arising out of defendant's use of the sound recording "It Had to be You" in connection with the television show (and international concert tour of) So You Think You Can Dance: breach of contract, fraud, and for an accounting. But, as the complaint explicitly indicated,
Evans v. Dick Clark Productions, Inc., No. SC096606 (Cal. Super.Ct., Los Angeles Co. - Western Dist.) (Emphasis added.)
In response, Defendant filed a notice of removal to the federal district court in the Central District of California, noting that federal courts have original jurisdiction over copyright cases pursuant to 28 U.S.C. 1338(a). ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights... Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases."). Further, Dick Clark argued that 17 U.S.C. 301(a) is "a broad preemption provision that preempts all state law claims within the general scope of copyright."
Given the above, it is unclear why Plaintiff (who is not appearing pro se) filed suit in state court.
[Evans v. Dick Clark Productions, Inc., No. 2:08-cv-00800-SVW-FFM (C.D.Cal, notice of removal filed Feb. 6, 2008)]
NATURE OF THE ACTION
6. This complaint concerns the breach of a written contract and the infringement of copyrighted property of Mr. Evans, specifically his recording of the song "It Had To Be You," the master of which is owned by the Plaintiff. The copyright registration number of this song is SR0000357687 (dated 06-22-2004). This particular song was used in the tour "So You Think You Can Dance." The recording of this song is not subject to BMI, ASCAP regulations or procedures. Plaintiff recorded this song on his own and licensed it to Dick Clark Productions, Inc.
Evans v. Dick Clark Productions, Inc., No. SC096606 (Cal. Super.Ct., Los Angeles Co. - Western Dist.) (Emphasis added.)
In response, Defendant filed a notice of removal to the federal district court in the Central District of California, noting that federal courts have original jurisdiction over copyright cases pursuant to 28 U.S.C. 1338(a). ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights... Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases."). Further, Dick Clark argued that 17 U.S.C. 301(a) is "a broad preemption provision that preempts all state law claims within the general scope of copyright."
Given the above, it is unclear why Plaintiff (who is not appearing pro se) filed suit in state court.
[Evans v. Dick Clark Productions, Inc., No. 2:08-cv-00800-SVW-FFM (C.D.Cal, notice of removal filed Feb. 6, 2008)]
December 13, 2007
A'ccounting On You
Two corresponding cases, filed by the same attorney in New York Supreme Court (NY Co./Manhattan), are complaints for alleged breach of contract for failure to provide accountings detailing the labels' exploitation of plaintiffs' sound recordings. One complaint also alleges unjust enrichment.
[Shannon Brenda Greene pka Shannon v. Emergency Records and Filmworks Inc.; Unidisc Music Inc.; filed 12/12/2007; case no. 07-604067 ]
[Leah Lorien Alomar pka Lea Lorien v. DMI Records Inc.; David Morales; filed 12/12/2007; case no. 07-604068]
[Shannon Brenda Greene pka Shannon v. Emergency Records and Filmworks Inc.; Unidisc Music Inc.; filed 12/12/2007; case no. 07-604067 ]
[Leah Lorien Alomar pka Lea Lorien v. DMI Records Inc.; David Morales; filed 12/12/2007; case no. 07-604068]
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