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].
Showing posts with label Sound Recording. Show all posts
Showing posts with label Sound Recording. Show all posts
December 30, 2015
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).
October 26, 2015
Pandora Pre-1972 Suit Settles
Various news outlets report that the Pandora pre-1972 sound recording litigation has settled for $90 million.
December 24, 2014
Copyright Royalty Board Royalty Rates For Performance Of Sound Recordings Affirmed
Music Choice v. Copyright Royalty Board, No. 13-1174/13-1183 (D.C. Cir. Dec. 19, 2014).
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
December 10, 2014
Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity
Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
December 5, 2014
Court My Reconsider Pre-1972 Sound Recording Decision In Turtles/Sirius Case
Flo & Eddie, Inc. v. Sirius XM Radio, 1:13-cv-05784-CM (SDNY filed 12/03/14) [Doc. 103].
As previously reported, a New York federal court recently found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. However, defendant Sirius XM, by new counsel, subsequently brought to the Court's attention a previously un-cited decades old 2nd Circuit decision, RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 87-88 (2d Cir. 1940), which held that no common law public performance right existed in sound recordings. "Whiteman plainly should have been addressed the first time around, and it must be dealt with now- it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case." Accordingly, the court entered a scheduling order for plaintiff to respond and discuss the case
As previously reported, a New York federal court recently found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. However, defendant Sirius XM, by new counsel, subsequently brought to the Court's attention a previously un-cited decades old 2nd Circuit decision, RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 87-88 (2d Cir. 1940), which held that no common law public performance right existed in sound recordings. "Whiteman plainly should have been addressed the first time around, and it must be dealt with now- it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case." Accordingly, the court entered a scheduling order for plaintiff to respond and discuss the case
November 30, 2014
New York Common Law Protects Public Performance of Pre-1972 Sound Recordings; NY Federal Court Joins California Federal Court
Flo & Eddie, Inc. v. Sirius XM, Inc., No. 1:13-cv-05784 (S.D.N.Y. filed Nov. 14, 2014) [Doc. 88].
Joining a California federal court in a parallel case, a New York federal court found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. "In short, general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist. New York has always protected public performance rights in works other than sound recordings that enjoy the protection of common law copyright. Sirius suggests no reason why New York -- a state traditionally protective of performers and performance rights -- would treat sound recordings differently."
First, the court found that plaintiff holds valid common law copyrights in the Turtles' sound recordings. "The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them. That copyright was then transferred...eventually to Flo and Eddie, which now owns the sound recordings."
Second, the Court found that Flo and Eddie's common law copyright provides exclusive rights to reproduce and publicly perform Turtles recordings. As to the absence of prior litigation on the matter, "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law -- only that they failed to act on it." The court did not read too much into the fact that New York courts have never squarely addressed this particular feature of state copyright law in the context of sound recordings.
Third, the Court found that Sirius infringed plaintiff's common law copyright and engaged in unfair competition (misappropriation). In reproducing Turtles recordings, Sirius acted without authorization. Further, to the extent that distribution is an element of common law copyright, the Court found that publicly performing sound recordings is an act of distribution.
Moreover, even though the Court found that there is a common law fair use defense parallel to the federal fair use defense, Sirius XMs creation of multiple complete copies of the sound recordings could not be considered a fair use. "It is a matter of economic commons sense that Sirius harms Flo and Eddie's sales and potential licensing fees (even if the latter market is not yet extant) by publicly performing Turtles sound recordings."
Lastly, the Court rejected Sirius XM's argument that plaintiff's claims are barred by the constitutional Dormant Commerce Clause, which provides that states may not interfere with interstate commerce. U.S. Const. art. I, sec. 8. The court found that the argument is a "red herring" because New York does not "regulate" anything by recognizing common law copyright. Sirius objects to a "general principle respecting the liability of all persons within the jurisdiction of" New York, which under the 1876 (yes, 1876) Supreme Court decision Sherlock v. Alling, 93 U.S. 99, is not a state-imposed regulation that might affect interstate commerce.
Joining a California federal court in a parallel case, a New York federal court found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. "In short, general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist. New York has always protected public performance rights in works other than sound recordings that enjoy the protection of common law copyright. Sirius suggests no reason why New York -- a state traditionally protective of performers and performance rights -- would treat sound recordings differently."
First, the court found that plaintiff holds valid common law copyrights in the Turtles' sound recordings. "The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them. That copyright was then transferred...eventually to Flo and Eddie, which now owns the sound recordings."
Second, the Court found that Flo and Eddie's common law copyright provides exclusive rights to reproduce and publicly perform Turtles recordings. As to the absence of prior litigation on the matter, "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law -- only that they failed to act on it." The court did not read too much into the fact that New York courts have never squarely addressed this particular feature of state copyright law in the context of sound recordings.
Third, the Court found that Sirius infringed plaintiff's common law copyright and engaged in unfair competition (misappropriation). In reproducing Turtles recordings, Sirius acted without authorization. Further, to the extent that distribution is an element of common law copyright, the Court found that publicly performing sound recordings is an act of distribution.
Moreover, even though the Court found that there is a common law fair use defense parallel to the federal fair use defense, Sirius XMs creation of multiple complete copies of the sound recordings could not be considered a fair use. "It is a matter of economic commons sense that Sirius harms Flo and Eddie's sales and potential licensing fees (even if the latter market is not yet extant) by publicly performing Turtles sound recordings."
Lastly, the Court rejected Sirius XM's argument that plaintiff's claims are barred by the constitutional Dormant Commerce Clause, which provides that states may not interfere with interstate commerce. U.S. Const. art. I, sec. 8. The court found that the argument is a "red herring" because New York does not "regulate" anything by recognizing common law copyright. Sirius objects to a "general principle respecting the liability of all persons within the jurisdiction of" New York, which under the 1876 (yes, 1876) Supreme Court decision Sherlock v. Alling, 93 U.S. 99, is not a state-imposed regulation that might affect interstate commerce.
No Interlocutory Appeal Of Pre-72 Sound Recording Liability Holding In Turtles v Sirius Case
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5693 (C.D. Cal. Nov. 20, 2014).
The District Court denied Sirius XM's motion to certify for interlocutory appeal the Court's earlier order granting partial summary judgment. The earlier order granted plaintiff summary judgment to the extent that its claims were premised on Sirius XM's public performance of plaintiff's pre-1972 sound recordings, ruling that owners of sound recordings have the exclusive right to publicly perform their recordings under California Civil Code 980(a)(2). 28 USC 1292(b) provides a means for litigants to bring an immediate appeal of a non-final order with the consent of both the federal district court and the federal court of appeals. The district court denied the motion because, "[a]t this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation". Continuing, the district court observed that the case is moving swiftly toward trial and a final resolution that will be appealable to the Ninth Circuit in the customary manner. While interpretation of Cal. Civ. Code 980(a)(2) is an issue of controlling law, an immediate appeal would not speed up the resolution of the case.
The District Court denied Sirius XM's motion to certify for interlocutory appeal the Court's earlier order granting partial summary judgment. The earlier order granted plaintiff summary judgment to the extent that its claims were premised on Sirius XM's public performance of plaintiff's pre-1972 sound recordings, ruling that owners of sound recordings have the exclusive right to publicly perform their recordings under California Civil Code 980(a)(2). 28 USC 1292(b) provides a means for litigants to bring an immediate appeal of a non-final order with the consent of both the federal district court and the federal court of appeals. The district court denied the motion because, "[a]t this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation". Continuing, the district court observed that the case is moving swiftly toward trial and a final resolution that will be appealable to the Ninth Circuit in the customary manner. While interpretation of Cal. Civ. Code 980(a)(2) is an issue of controlling law, an immediate appeal would not speed up the resolution of the case.
October 17, 2014
Wyclef Escapes Infringement Claim Because "Actual Sounds" Not Copied
Pryor v. Jean, No. CV 13-02867, 2014 BL 283332 (C.D. Cal. Oct. 08, 2014) [Doc. 36].
Plaintiff, who claimed that his 1970's song "Bumpin' Bus Stop" was infringed by the defendants use of a sample in the Wyclef Jean song "Step Up" recorded in 2006, had his copyright infringement case dismissed. The issue was that Plaintiff's song had appeared on two albums. The song first appeared on a recording referred to as the "Gold Future" record. Later, the Gold Future record was remastered, shortened in duration, and Plaintiff's band name was changed. The latter record was referred to as the "Private Stock" record. Years later, Defendants licensed the song from the Private Stock record.
The existence of two separate sound recordings (the Gold Future record and the
Private Stock remaster) was important, as the substantive allegations at issue referred only to copyright to the Gold Future record, and not to the "Bumpin'
Bus Stop" musical composition featured in both the Gold Future record and the
Private Stock record. The Court found: "Under 17
U.S.C. § 114(b), Plaintiffs have the exclusive right to duplicate,
rearrange, or remix the 'actual sounds' of the
Gold Future record. Defendants did not do anything with those 'actual sounds.' Rather, Defendants used licensed 'actual sounds' from the Private Stock record. Because the TAC's First and Second claims for relief are premised solely upon
infringement of the Gold Future sound recording copyright, those claims are
DISMISSED, with prejudice."
December 5, 2013
Transfer Denied In Sirius Class Action Over Pre-72 Recordings
Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG (C.D. Cal. Dec. 3, 2013).
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
September 19, 2013
9th Cir. Orders Trial Over Bob Marley Licensing Rights
Rock River Commc'n v. Universal Music Group, No. 11-57168
(9th Cir. filed 9/18/13) [Decision]
This case concerns licensing rights for early Bob Marley
recordings. The absence of legal
documentation has led to confusion as to who owns licensing rights for the
recordings.
August 15, 2013
New York Law On Photographing And Recording Concerts
In researching for an unrelated matter, I came across New York's Arts and Cultural Affairs Law § 31.01. The law was enacted in 1983. Imagine how it might apply today, with the abundance of iPhones and other smart-phones with image capturing and sound recording capabilities.
The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so." Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.
Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance. Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre.
If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.
The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."
The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so." Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.
Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance. Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre.
If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.
The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."
There are no reported cases under this statute.
March 28, 2013
Public Performance Of Sound Recordings - Ad
Glenn Peoples, NAB Calls Performance Right 'Bad for Artists, Bad for Listeners', Billboard (Mar. 27, 2013) (link):
The National Association of Broadcasters has called a performance right for sound recordings “bad for radio, bad for artists and bad for listeners” in two newspaper advertisements thanking two new co-sponsors of the Congressional resolutions supporting the Local Radio Free Act.
March 5, 2013
July 16, 2012
Pre-1972 Recordings Subject To DMCA
UMG Recordings, Inc. v. Escape Media Group, Inc., No. 100152/2010 (Sup. Ct., N.Y. Co. July 10, 2012) (Kapnick, J.S.C.).
New York State Court holds that the "safe harbor" provisions of the DMCA extend to common law copyright claims relating to pre-1972 recordings.
Plaintiff moved to dismiss defendant's "safe harbor" affirmative defense under the DMCA [17 U.S.C. 512(c)(1)]. Section 301(c) of the Copyright Act makes clear that the copyrights of pre-1972 recordings are not protected by the federal Copyright Act, and the Court analyzed whether the DMCA may provide a defense or "safe harbor" to internet service providers facing New York State common law copyright infringement claims (as opposed to claims under the federal act). The Court observed that only one court has considered the issue (Capitol Records, Inc. v. MP3Tunes, 821 F. Supp.2d 627, 640 (SDNY 2011), and concluded that "there is no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings." In response to a report by the Register of Copyrights that "it is for the Courts to interpret the applicable statute and decide the issues raise by this motion. This Court is not attempting to extend the Copyright Act to pre-1972 recordings, but, nonetheless, does find, based on the relevant language of the statutes...that the safe harbor provisions codified by section 512(c)(1) of the DMCA is applicable to pre-1972 recordings." Accordingly, plaintiff's motion to dismiss the DMCA affirmative defense was denied.
However, the Court did dismiss defendant's affirmative defense based on the Communications Decency Act of 1996 (the "CDA") [47 U.S.C. 230]. Lastly, the Court dismissed defendant's counter-claim for violation of a New York State anti-trust statute, the "Donnelly Act" (NY General Business Law 340), but denied plaintiff's motion to dismiss the counter-claims for tortious interference with contract and business relations.
New York State Court holds that the "safe harbor" provisions of the DMCA extend to common law copyright claims relating to pre-1972 recordings.
Plaintiff moved to dismiss defendant's "safe harbor" affirmative defense under the DMCA [17 U.S.C. 512(c)(1)]. Section 301(c) of the Copyright Act makes clear that the copyrights of pre-1972 recordings are not protected by the federal Copyright Act, and the Court analyzed whether the DMCA may provide a defense or "safe harbor" to internet service providers facing New York State common law copyright infringement claims (as opposed to claims under the federal act). The Court observed that only one court has considered the issue (Capitol Records, Inc. v. MP3Tunes, 821 F. Supp.2d 627, 640 (SDNY 2011), and concluded that "there is no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings." In response to a report by the Register of Copyrights that "it is for the Courts to interpret the applicable statute and decide the issues raise by this motion. This Court is not attempting to extend the Copyright Act to pre-1972 recordings, but, nonetheless, does find, based on the relevant language of the statutes...that the safe harbor provisions codified by section 512(c)(1) of the DMCA is applicable to pre-1972 recordings." Accordingly, plaintiff's motion to dismiss the DMCA affirmative defense was denied.
However, the Court did dismiss defendant's affirmative defense based on the Communications Decency Act of 1996 (the "CDA") [47 U.S.C. 230]. Lastly, the Court dismissed defendant's counter-claim for violation of a New York State anti-trust statute, the "Donnelly Act" (NY General Business Law 340), but denied plaintiff's motion to dismiss the counter-claims for tortious interference with contract and business relations.
February 2, 2012
Lyricist's Suit Against Video Game Developer Survives
Greer v. Electronic Arts, Inc., No. 10-cv-3601 (N.D. Cal. order filed Feb. 1, 2012) [Doc. 96].
In this copyright infringement action, plaintiff contended that defendant improperly used a
sound recording and the lyrics of a song by incorporating them into a widely-distributed videogame. Defendant moved for summary judgment on three independent grounds. Although two of defendant’s three arguments presented close calls, triable issues of fact existed that precluded summary judgment, and the motion was denied.
Facts: Plaintiff was a member of a band that registered a copyright relating to an album the band had recorded, which included the song at issue. Plaintiff subsequently filed a correction to the registration to clarify that he claimed sole copyright to the lyrics of the song. One of Plaintiff's band mates was employed by a video game developer, and was working to create a soundtrack for a video game that was being was developed. The band mate chose to include the song as part of the soundtrack for the game. The band mate and two other band members submitted declarations stating that all of the band members executed a written license agreement giving the developer the right to use the song in the game in exchange for one dollar and acknowledgement in the on-screen credits of the game. No signed copy of such a license agreement was located, and Plaintiff denied ever being asked to sign a license agreement, and alleges that he did not become aware that the song had been incorporated into the game until 2009.
Discussion: First, the court addressed issues with the registration of the album containing the song as a "PA" (performing arts), in contrast to registration on a form "SR" (sound recording). While Form SR may be used to register both the underlying composition and the
sound recording if separate registrations are not necessary or desired, nothing on Form PA permits it to be used to register a sound recording. Thus, defendant was correct that the band’s recorded performance of the song that was used in the game was never registered. That fact, however, wasnot fatal to plaintiff's claims, because plaintiff's complaint specifically identified by registration number the copyrighted work that plaintiff alleged had been unlawfully copied. While the complaint also repeatedly asserted the erroneous legal conclusion that the registration was of the sound recording (as opposed to the underlying musical composition) the facts alleged were sufficient to state a claim for infringement of the musical composition. There was no dispute that the band's performance of the song incorporated in the game was a performance of the underlying composition.
Second, the Court analyzed the competing arguments about the existence of a license. The Court concluded that the record did not permit a conclusion on summary judgment that the license agreement was ever signed, either in the unsigned form of the document defendant hadsubmitted, or in any form. While the recollections on both sides were vague, they were in direct conflict.
Third, the Court analyzed the defense of laches. Defendant made a compelling showing that this was a case in which laches may ultimately apply to bar at least some portion of plaintiff's claims. Among other things, the evidentiary prejudice was manifest in the witnesses’ fading memories and the uncertainty in the documentary record as to whether the license agreement was ever signed. The critical question, however, was when plaintiff knew or should have known that the song had been incorporated into the game. Plaintiff's testimony that he did not learn of the song’s use in the game until 2009 was sufficient to create a triable issue of fact as to his actual knowledge. If the trier of fact accepts the testimony that the possibility of using the song in the game was discussed at length prior to plaintiff's departure from the band, he more likely can be held to a duty of some inquiry, even assuming he never saw or signed the license agreement. Defendant had not shown, however, that undisputed facts compel a finding that plaintiff was on constructive notice as early as 1995, or at any particular time thereafter. Finally, defendant had not established that laches necessarily would bar plaintiff from seeking injunctive relief against any ongoing infringement, even assuming it ultimately bars some or all of his claims for past damages.
July 10, 2009
Reconsideration of Sanction Denied
Homkow v. Musika Records Inc., No. 04 Civ. 3587, NYLJ 7/10/2009 "Decision of Interest (SDNY June 18, 2009) (denying motion to reconsider).
The Court had adopted magistrate's report to sanction defendants based on plaintiff's hours "primarily spent dealing with, reacting to, and seeking relief from, the steady stream of misstatements from Defendants as to the location and status" of the Master tapes.
On reconsideration, the Court confirmed the Report's assessment. Moreover, Plaintiff'smonetary damages and copyright claims were predicated on Plaintiff's inability to recover the Master tapes. Thus, whatever attorney's fees Plaintiff incurred in pursuit of the monetary damages and copyright claims were as result of Defendants' failure to return the Master tapes as promised.
February 26, 2009
Senate Proposes Royalties for Broadcast Sound Recordings
A new bill has been introduced in the Senate that would require over-the-air radio broadcasters to pay royalties for performances of sound recordings. Radio already pays royalties to composers for the music they broadcast, but since the advent of radio, stations have not been required to pay royalties to the performing artists or record labels. The new bill would give sound recording copyright holders the right to control performances of their recordings, but would set up a compulsory license under which radio stations would be able to perform sound recordings pursuant to agreed-upon rates.
By Bruce G. Joseph and Matthew J. Astle, Wiley Rein LLP (2/20/09)
By Bruce G. Joseph and Matthew J. Astle, Wiley Rein LLP (2/20/09)
June 1, 2008
DMCA: Prince Blocks YouTube Video of 'Creep' Cover
Here's an interesting question under the Digital Millennium Copyright Act:
Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?
Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".
So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?
Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.
Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.
But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.
[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]
Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?
Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".
So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?
Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.
Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.
But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.
[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]
March 18, 2008
Amazon Faces False Attribution Claim in Infringement Suit For Unauthorized Digital Downloads
In Taylor v. Amazon.com et al., No. 2:08-cv-00061-wks (D. Vermont filed Mar. 17, 2008), the core of plaintiff's claim is:
Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.
Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]
Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.
Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."
Several Observations and Comments:
(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)
(2) What is the process by which digital music stores obtain information regarding copyright ownership?
(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?
Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.
Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]
Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.
Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."
Several Observations and Comments:
(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)
(2) What is the process by which digital music stores obtain information regarding copyright ownership?
(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?
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