ABS Entm't, Inc. v. CBS, No. 15-cv-6801 (S.D.N.Y. Feb. 17, 2016).
New York's 3 year statute of limitations "for an injury to property" applies to plaintiffs' claims for common law copyright infringement of pre-1972 sound recordings, holds the Court, not the State's 6-year "catch-all" provision. CPLR 213(1) and 214(4). Plaintiffs, a putative class, allege that CBS violated the public performance rights of pre-1972 sound recordings as protected under New York common law, and allege common law infringement and unfair competition. The narrow issue before the Court was whether a 3 or 6 year limitations period applied, and Judge Koetel held that the plain meaning of "property" (as used in the 3 year statute) is broad enough to encompass intangible property, like intellectual property in the form of sound recordings (or trade secrets). In other words, the 3 year limitations period is not limited to tangible property. Notably, the Court recognized that "the case law is mixed" on this question, addressing both the Flo & Eddie [80 F. Supp. 3d 535 , 541 (S.D.N.Y. 2015)] and Harrison [44 Misc. 3d 428 , 986 N.Y.S.2d 837 , 838 (Sup. Ct. 2014)] cases.
Showing posts with label Rule 12(b). Show all posts
Showing posts with label Rule 12(b). Show all posts
February 22, 2016
January 20, 2016
Village People Claims Dismissed On Res Judicata Grounds
Willis v. Scorpio Music, No. 15-cv-1078 (S.D. Cal. order dated Jan. 19, 2016).
In a second lawsuit concerning ownership of various "Village People" compositions, the district court dismissed a 50% owner's claims based on defendant's false claim of authorship, breach of fiduciary duty, and vicarious copyright infringement. As to the false ownership claims, the Court held that plaintiff was barred by the doctrine of res judicata from brining claims that he could have brought in the earlier action. As to the vicarous copyright infringement claim, the court held that the defendant had the right to license the composition and thus there was no infringement. Lastly, the court held that co-owners of a copyright -- though they have a duty to account -- do not have fiduciary duties to one another.
In a second lawsuit concerning ownership of various "Village People" compositions, the district court dismissed a 50% owner's claims based on defendant's false claim of authorship, breach of fiduciary duty, and vicarious copyright infringement. As to the false ownership claims, the Court held that plaintiff was barred by the doctrine of res judicata from brining claims that he could have brought in the earlier action. As to the vicarous copyright infringement claim, the court held that the defendant had the right to license the composition and thus there was no infringement. Lastly, the court held that co-owners of a copyright -- though they have a duty to account -- do not have fiduciary duties to one another.
December 30, 2015
Chorus In Bieber & Usher Song Similar Enough To Chorus In Plaintiff's Song To State Copyright Claim
Copeland v. Bieber, No. 14-1427 (4th Cir. June 18, 2015)
The Fourt Circuit vacated the trial Court's dimissal of Plaintiff's claim against Justin Bieber and other defendants alleging that three recorded songs infringe upon plaintiff's copyright in an earlier song of the same name. Applying the "intrinsic similarity" test -- whether the songs at issue, assessed from the perspective of the intended audience (the general public), and taking into account their "total concept and feel" -- the appellate court found on de novo review, after listening to both songs start to finish, that plaintiff stated a claim. First, the court found that the three songs (a demo, album version, and remix) were "the same" (not just substantially similar) under the unscientific intrisic standard. Second, the court compared the three songs to plaintiff's song. The appellate court disagreed with the lower court's finding that there was a different overall "aesthetic appeal," finding too much of a focus on the mood and tone of the song rather than the similarities between the most imporant "element" of the songs, their choruses. The songs are different genres, but that is not enough (the Court gave the example of the Beatles' songbook being turned into an unlicensed reggae or heavy metal version). Further, the songs were in may respects dissimilar; numerically, the points of dissimilarity may have exceeded the points of similarity. "But what that analysis fails to account for...is the relative importances of these differences as compared to what the songs reasonably could be heard to have in common: their choruses....courts routinely permit a finding of substantial similarity where the works share some espeically significant sequence of notes or lyrics." Continguing, "we think it is clear that when it comes to popular music, a song's chorus may be the kind of key sequence that can give rise to intrinsic similarity, even when works differ in other respects." In other words, "the hook" is key. And whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar is a close enough question that it cannot be disposed of as a matter of law and should instead by decided by a jury.
[Author's note: missed this case earlier in the year].
The Fourt Circuit vacated the trial Court's dimissal of Plaintiff's claim against Justin Bieber and other defendants alleging that three recorded songs infringe upon plaintiff's copyright in an earlier song of the same name. Applying the "intrinsic similarity" test -- whether the songs at issue, assessed from the perspective of the intended audience (the general public), and taking into account their "total concept and feel" -- the appellate court found on de novo review, after listening to both songs start to finish, that plaintiff stated a claim. First, the court found that the three songs (a demo, album version, and remix) were "the same" (not just substantially similar) under the unscientific intrisic standard. Second, the court compared the three songs to plaintiff's song. The appellate court disagreed with the lower court's finding that there was a different overall "aesthetic appeal," finding too much of a focus on the mood and tone of the song rather than the similarities between the most imporant "element" of the songs, their choruses. The songs are different genres, but that is not enough (the Court gave the example of the Beatles' songbook being turned into an unlicensed reggae or heavy metal version). Further, the songs were in may respects dissimilar; numerically, the points of dissimilarity may have exceeded the points of similarity. "But what that analysis fails to account for...is the relative importances of these differences as compared to what the songs reasonably could be heard to have in common: their choruses....courts routinely permit a finding of substantial similarity where the works share some espeically significant sequence of notes or lyrics." Continguing, "we think it is clear that when it comes to popular music, a song's chorus may be the kind of key sequence that can give rise to intrinsic similarity, even when works differ in other respects." In other words, "the hook" is key. And whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar is a close enough question that it cannot be disposed of as a matter of law and should instead by decided by a jury.
[Author's note: missed this case earlier in the year].
Record Company Copyright Claims Against Amway Survive Dismissal
Alticor Inc. v. UMG Recordings, Inc., No. 6:14-cv-542 (M.D. Fla. Dec. 10, 2015).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
December 24, 2015
Sampling Case Against B.I.G. Dismissed
Hutson v. Notorious B.I.G., LLC et al., No. 14-cv-2307-RJS (SDNY Dec. 22, 2015) [Doc. 51].
On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die." Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014. In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.
The Court dismissed each claim. After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.
First, the Court found that Plaintiff lacked standing. Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities. [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.] Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.
Second, the Court found that it lacked jurisdiction over infringement occurring abroad.
Accordingly, the Court dismissed the claims. The Court even dismissed claims against a non-moving defendant.
Lastly, the Court denied Plaintiff's application for leave to amend, as futile.
On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die." Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014. In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.
The Court dismissed each claim. After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.
First, the Court found that Plaintiff lacked standing. Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities. [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.] Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.
Second, the Court found that it lacked jurisdiction over infringement occurring abroad.
Accordingly, the Court dismissed the claims. The Court even dismissed claims against a non-moving defendant.
Lastly, the Court denied Plaintiff's application for leave to amend, as futile.
November 13, 2015
Pro Se Plaintiff's Taylor Swift Case Dismissed At In Forma Pauperis Stage
Braham v. Sony/ATV Music Publishing et al., 15-cv-8422 (C.D. Cal. Nov. 10, 2015).
A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement. According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate". Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.” The Court found that the plaintiff failed to adequately allege copying under Rule 8. The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics. Moreover, the plaintiff would need to allege that his lyrics are original.
A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement. According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate". Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.” The Court found that the plaintiff failed to adequately allege copying under Rule 8. The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics. Moreover, the plaintiff would need to allege that his lyrics are original.
October 27, 2015
Beyonce Dodges Copyright Claim In "XO" v "XOXO" Case
Lane v. Carter et al., No. 14-cv-6798 (SDNY filed 10/21/15) [Doc. 51].
Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a). First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim. Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright. Accordingly, the claim was dismissed for lack of standing.
Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable. The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity. The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them. Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO. Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original). Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby." The themes were also different. Next, as to the music, the Court listened to the two song and found litte, if anything, in common. The Court, accordingly, dismissed the complaint with prejudice.
Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a). First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim. Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright. Accordingly, the claim was dismissed for lack of standing.
Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable. The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity. The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them. Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO. Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original). Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby." The themes were also different. Next, as to the music, the Court listened to the two song and found litte, if anything, in common. The Court, accordingly, dismissed the complaint with prejudice.
October 1, 2015
Kanye, Jay-Z and Others Avoid Copyright Infringement Claim Because Two "Made In America" Songs Not Substantially Similar
McDonald v. West et al., No. 14-cv-8794 (S.D.N.Y. Sep. 30, 2015) [Doc. 42].
In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6). First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable. "It is too brief, common, and unoriginal to create any exclusive right." Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity. However, the Court found that plaintiff did not plausibly plead substantial similarity. The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements. The Court found that no reasonable jury could find the two songs similar, lyrically or musically. The differences were major. "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law." Accordingly, the Court dismissed the complaint.
In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6). First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable. "It is too brief, common, and unoriginal to create any exclusive right." Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity. However, the Court found that plaintiff did not plausibly plead substantial similarity. The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements. The Court found that no reasonable jury could find the two songs similar, lyrically or musically. The differences were major. "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law." Accordingly, the Court dismissed the complaint.
September 28, 2015
Court Has Jurisdiction Over King Of Pop's Executors In Photo Shoot Case, But Plaintiff's Counsel Disqualified As A Witness
Noval Williams Films v. Branc, 14-cv-4711 (S.D.N.Y. Sep. 3, 2015) [Doc. 43].
In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court. However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.
In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court. However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.
July 28, 2015
Katie Perry Dismissed From Copyright Suit In Missouri For Lack Of Personal Jurisdiction
Gray v. Hudson, 14-cv-1183 (E.D. Mo. dated July 23, 2015).
A copyright action against Katie Perry alleging that her song "Dark Horse" infringes upon Plaintiff's gospel/hip-hop song was dismissed by the Court for lack of personal jurisdiction over Perry and the other defendants. Fed. R. Civ. P. 12(b)(2). Plaintiffs alleged that Defendants directed their marketing/promotion/sale of the song towards residents of the State of Missouri, including performing concerts in the state. However, the Court agreed with Defendants that it lacked personal jurisdiction due to a lack of minimum contacts necessary to comport with due process. The only defendant who did not contest jurisdiction, Capitol Records, moved to transfer the action to New York or California and the Court granted the motion to transfer to the Central District of California.
A copyright action against Katie Perry alleging that her song "Dark Horse" infringes upon Plaintiff's gospel/hip-hop song was dismissed by the Court for lack of personal jurisdiction over Perry and the other defendants. Fed. R. Civ. P. 12(b)(2). Plaintiffs alleged that Defendants directed their marketing/promotion/sale of the song towards residents of the State of Missouri, including performing concerts in the state. However, the Court agreed with Defendants that it lacked personal jurisdiction due to a lack of minimum contacts necessary to comport with due process. The only defendant who did not contest jurisdiction, Capitol Records, moved to transfer the action to New York or California and the Court granted the motion to transfer to the Central District of California.
July 9, 2015
Keith Urban PLAYER Trademark Case Dismissed
Beckett v. Urban et al., No. 15-cv-1407 (C.D. Cal. dated July 6, 2015).
A trademark infringment and dilution claim against country music star Keith Urban, concerning the mark PLAYER, was dismissed on the pleadings. The Court found that plaintiff’s mark of “PLAYER” and Defendant s’ mark “Player by Keith Urban” are not sufficiently similar. Defendants use of the phras e “by Keith Urban” clearly denotes that Keith Urban is the good’s source, dispelling any potenti al confusion with Plaintiff’s band “PLAYER.” Further, the Court found that Plaintiff’s and Defendants’ goods and servicees are not closely re lated. Plaintiff’s trademark is for audio and video recordings featuring music and artistic performances by a rock band and for entertainment services in the nature of live audio performances by a rock band. Defendants are marketing a guitar and guitar lesson kit complete with audio a nd video recordings that teaches a consumer to use and play guitar. As to the dilution claim, Plaintiff failed to allege that his mark is sufficiently famous.
A trademark infringment and dilution claim against country music star Keith Urban, concerning the mark PLAYER, was dismissed on the pleadings. The Court found that plaintiff’s mark of “PLAYER” and Defendant s’ mark “Player by Keith Urban” are not sufficiently similar. Defendants use of the phras e “by Keith Urban” clearly denotes that Keith Urban is the good’s source, dispelling any potenti al confusion with Plaintiff’s band “PLAYER.” Further, the Court found that Plaintiff’s and Defendants’ goods and servicees are not closely re lated. Plaintiff’s trademark is for audio and video recordings featuring music and artistic performances by a rock band and for entertainment services in the nature of live audio performances by a rock band. Defendants are marketing a guitar and guitar lesson kit complete with audio a nd video recordings that teaches a consumer to use and play guitar. As to the dilution claim, Plaintiff failed to allege that his mark is sufficiently famous.
May 8, 2015
Stairway To Heaven Copyright Infringement Survives Dismissal, Transferred From Philly To Calif.
Skidmore v. Led Zeppelin, 14-cv-03089 (E.D. Pa. filed 05/06/15) [Doc. 54].
Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.” Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven." Defendants moved to dismiss for lack of jurisdiction and improper venue.
The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed. Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis. These Defendants, however, consented to personal jurisdiction and venue in the Central District of California. The Court found a transfer to California to be in the interests of justice.
Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.” Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven." Defendants moved to dismiss for lack of jurisdiction and improper venue.
The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed. Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis. These Defendants, however, consented to personal jurisdiction and venue in the Central District of California. The Court found a transfer to California to be in the interests of justice.
April 9, 2015
Fraudulent DMCA Take-Down Notice May Be Basis For Claim If iTunes Stores Music At Direction Of A User
Distribuidora De Discos Karen, C por A. v. Seijas, No. 13 Civ. 5200 (NRB), 2015 BL 93133 (S.D.N.Y. Mar. 26, 2015).
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
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."
December 1, 2014
Claims In 'Sugarman' Case Survive Dismissal; Rights Transferred To Defunct Publisher's Shareholder By Operation Of Law
Gomba Music, Inc. v. Avant, No. 14-cv-11767, 2014 BL 330905 (E.D. Mich. Nov. 24, 2014).
The Court dismissed a corporate music publisher's case in the Sugarman / Sixto Rodriguez case because the company had been administratively dissolved by the State of Michigan in 1971 for failure to file certain papers, but the claims by the company's sole shareholder survived because when the company dissolved, any interests it held were transferred to him by operation of law. The Court found that whether under the 1976 or 1909 Copyright Acts, by operation of law [Mich. Comp. Laws § 450.1855a], any rights that the company had in the compositions transferred to its sole shareholder when the corporation dissolved. The Court also found that the decision to sue in the company's name was due to a mistaken belief that the entity would be reinstated and that it was necessary to sue in the company's name because it was the original assignee of rights; accordingly, the Court allowed substitution of the shareholder for the defunct company he formerly owned as sole proprietor, pursuant to Fed. R. Civ. P. 17.
Thereafter, the Court addressed the sufficiency of the causes of action. First, the Court held that the plaintiff could assert fraud on the copyright office as a declaratory judgment action to attack the prima facie validity of defendants' copyrights in the compositions. Second, the Court held that the plaintiff could assert a declaratory judgment claim that he is the exclusive owner of the copyright in the compositions because it was plausible that plaintiff was not placed on notice of his claims until sometime after the release of the film Waiting for Sugar Man in July 2012 and therefore plausible that he timely filed his claim for declaratory judgment in May 2014. Third, the Court held that plaintiff could assert fraudulent concealment claims, and that the claims were not time-barred, because the name of the artist with whom plaintiff had an exclusive agreement (Sixto Rodriguez) was completely absent from the album credits, there were affirmative statement that others wrote the works, the plaintiff had limited motivation to investigate further given the "commercial failure" of the album at the time it was released, the artist Sixto Rodriguez was under an exclusive contract with the publisher plaintiff, and, later, copyright registrations were issued based on representations that others wrote the works. Lastly, the Court found that the copyright infringement claim also was not time-barred, and though the plaintiff may be precluded from certain statutory damages/attorneys' fees based on the timing of his attempted registration, that did not bar the claims.
The Court dismissed a corporate music publisher's case in the Sugarman / Sixto Rodriguez case because the company had been administratively dissolved by the State of Michigan in 1971 for failure to file certain papers, but the claims by the company's sole shareholder survived because when the company dissolved, any interests it held were transferred to him by operation of law. The Court found that whether under the 1976 or 1909 Copyright Acts, by operation of law [Mich. Comp. Laws § 450.1855a], any rights that the company had in the compositions transferred to its sole shareholder when the corporation dissolved. The Court also found that the decision to sue in the company's name was due to a mistaken belief that the entity would be reinstated and that it was necessary to sue in the company's name because it was the original assignee of rights; accordingly, the Court allowed substitution of the shareholder for the defunct company he formerly owned as sole proprietor, pursuant to Fed. R. Civ. P. 17.
Thereafter, the Court addressed the sufficiency of the causes of action. First, the Court held that the plaintiff could assert fraud on the copyright office as a declaratory judgment action to attack the prima facie validity of defendants' copyrights in the compositions. Second, the Court held that the plaintiff could assert a declaratory judgment claim that he is the exclusive owner of the copyright in the compositions because it was plausible that plaintiff was not placed on notice of his claims until sometime after the release of the film Waiting for Sugar Man in July 2012 and therefore plausible that he timely filed his claim for declaratory judgment in May 2014. Third, the Court held that plaintiff could assert fraudulent concealment claims, and that the claims were not time-barred, because the name of the artist with whom plaintiff had an exclusive agreement (Sixto Rodriguez) was completely absent from the album credits, there were affirmative statement that others wrote the works, the plaintiff had limited motivation to investigate further given the "commercial failure" of the album at the time it was released, the artist Sixto Rodriguez was under an exclusive contract with the publisher plaintiff, and, later, copyright registrations were issued based on representations that others wrote the works. Lastly, the Court found that the copyright infringement claim also was not time-barred, and though the plaintiff may be precluded from certain statutory damages/attorneys' fees based on the timing of his attempted registration, that did not bar the claims.
September 18, 2014
Taylor Swift Faces Trademark Action Concerning Merchandise
Blue Sphere, Inc. v. Swift, Case No. SACV 14-00782-CJC (C.D. Cal. Sep. 17, 2014).
The Court denied country-star Taylor Swift's motion to dismiss plaintiff's trademark infringement and dilution case. Defendants contended that Plaintiffs had failed to show a likelihood of confusion. The Court found that while it is possible that Plaintiffs may not be able to present sufficient evidence to survive a summary judgment motion, they had plausibly alleged facts to survive a motion to dismiss. Plaintiffs alleged that they own the mark LUCKY 13, and further alleged that the Defendants’ use of the identical LUCKY 13 mark in connection with the sale of t-shirts online and through the online promotion of a “Lucky 13 Sweepstakes” is likely to cause confusion. The Court also found that Plaintiffs sufficiently alleged that the mark is famous so that the dilution claim survived.
The Court denied country-star Taylor Swift's motion to dismiss plaintiff's trademark infringement and dilution case. Defendants contended that Plaintiffs had failed to show a likelihood of confusion. The Court found that while it is possible that Plaintiffs may not be able to present sufficient evidence to survive a summary judgment motion, they had plausibly alleged facts to survive a motion to dismiss. Plaintiffs alleged that they own the mark LUCKY 13, and further alleged that the Defendants’ use of the identical LUCKY 13 mark in connection with the sale of t-shirts online and through the online promotion of a “Lucky 13 Sweepstakes” is likely to cause confusion. The Court also found that Plaintiffs sufficiently alleged that the mark is famous so that the dilution claim survived.
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.
February 28, 2014
Publisher Not Liable For Contributory Liability In Sampling Case Because Lacked Knowledge
Prior v. Warner/Chappel, No. 13-4344 (C.D. Cal. Feb. 20, 2014).
The court dismissed plaintiff's contributory copyright infringement claim against defendant music publisher because the complaint failed to allege the defendant "knew or had reason to know that [the song] included an unauthorized, infringing sample...". Moreover, the complaint failed to plausibly allege how the defendant knew that the directly infringing defendants would infringe as a result of the publisher's licensing of the song.
The court dismissed plaintiff's contributory copyright infringement claim against defendant music publisher because the complaint failed to allege the defendant "knew or had reason to know that [the song] included an unauthorized, infringing sample...". Moreover, the complaint failed to plausibly allege how the defendant knew that the directly infringing defendants would infringe as a result of the publisher's licensing of the song.
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”.
September 12, 2013
Beastie Boys Avoid Several Copyright Claims In Sampling Case
TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
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