Straughter v. Raymond, No. 08 cv 2170-CAS-CWX (C.D.Cal. filed Apr. 1st, 2008) is a copyright infringement action brought pro se by the author of a composition against the performer Usher arising out of Usher's sound recording "Burn" appearing on the album "Confessions". It appears that plaintiff's composition was previously performed with authorization by an earlier artist, and that Usher sampled that recording. It is not clear whether the label and/or publisher for the earlier recording of the composition are parties to the suit.
What grabbed OTCS attention to this case was plaintiff's third claim under the Lanham Act:
33. Mr. Straughter is a highly successful and well known Grammy-winning artist, composer, producer and performer. He has established a reputation at the top of his field and achieved world wide renown, expending substantial amounts of time and money to maintain the goodwill he has established.
34. Defendants and their representatives have distributed and provided goods and services in interstate commerce in connection with Plaintiff’s goodwill, notoriety and ownership interest in the copyright and Defendants have realized substantial income from the provision and sale of such goods and services.
35. Defendant’s use of Plaintiff’s sound recording and/or his copyrighted song in the performance of “Burn” is likely to cause confusion, mistake or deception by misleading consumers and the trade into believing that Plaintiff licensed or otherwise authorized the use of their performance, or that the “Burn” composition and Confessions Album associated with or otherwise endorsed by Plaintiff. Defendants conduct is in willful and deliberate violation of section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) (1) (A) and highly damaging to Plaintiff’s reputation and specific financial entitlements.
36. Defendants have profited and continue to profit from their unlawful conduct and will, unless restrained, further impair Plaintiff’s goodwill and reputation, and Plaintiff will suffer irreparable injury which cannot be adequately calculated or compensated solely by money damages.
Reading this count reminded us of the recent holding in Contractual Obligations Productions LLC v. AMC Networks, Inc., No. 04 cv 2867, 4/7/08 NYLJ "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2008) which cited Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) for the proposition that the Lanham Act does not apply to claims arising out of failure to credit or attribute the origin of a creative work.
April 8, 2008
Trademark Issue in Usher Copyright Suit?
Straughter v. Raymond, No. 08 cv 2170-CAS-CWX (C.D.Cal. filed Apr. 1st, 2008) is a copyright infringement action brought pro se by the author of a composition against the performer Usher arising out of Usher's sound recording "Burn" appearing on the album "Confessions". It appears that plaintiff's composition was previously performed with authorization by an earlier artist, and that Usher sampled that recording. It is not clear whether the label and/or publisher for the earlier recording of the composition are parties to the suit.
What grabbed OTCS attention to this case was plaintiff's third claim under the Lanham Act:
33. Mr. Straughter is a highly successful and well known Grammy-winning artist, composer, producer and performer. He has established a reputation at the top of his field and achieved world wide renown, expending substantial amounts of time and money to maintain the goodwill he has established.
34. Defendants and their representatives have distributed and provided goods and services in interstate commerce in connection with Plaintiff’s goodwill, notoriety and ownership interest in the copyright and Defendants have realized substantial income from the provision and sale of such goods and services.
35. Defendant’s use of Plaintiff’s sound recording and/or his copyrighted song in the performance of “Burn” is likely to cause confusion, mistake or deception by misleading consumers and the trade into believing that Plaintiff licensed or otherwise authorized the use of their performance, or that the “Burn” composition and Confessions Album associated with or otherwise endorsed by Plaintiff. Defendants conduct is in willful and deliberate violation of section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) (1) (A) and highly damaging to Plaintiff’s reputation and specific financial entitlements.
36. Defendants have profited and continue to profit from their unlawful conduct and will, unless restrained, further impair Plaintiff’s goodwill and reputation, and Plaintiff will suffer irreparable injury which cannot be adequately calculated or compensated solely by money damages.
Reading this count reminded us of the recent holding in Contractual Obligations Productions LLC v. AMC Networks, Inc., No. 04 cv 2867, 4/7/08 NYLJ "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2008) which cited Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) for the proposition that the Lanham Act does not apply to claims arising out of failure to credit or attribute the origin of a creative work.
What grabbed OTCS attention to this case was plaintiff's third claim under the Lanham Act:
33. Mr. Straughter is a highly successful and well known Grammy-winning artist, composer, producer and performer. He has established a reputation at the top of his field and achieved world wide renown, expending substantial amounts of time and money to maintain the goodwill he has established.
34. Defendants and their representatives have distributed and provided goods and services in interstate commerce in connection with Plaintiff’s goodwill, notoriety and ownership interest in the copyright and Defendants have realized substantial income from the provision and sale of such goods and services.
35. Defendant’s use of Plaintiff’s sound recording and/or his copyrighted song in the performance of “Burn” is likely to cause confusion, mistake or deception by misleading consumers and the trade into believing that Plaintiff licensed or otherwise authorized the use of their performance, or that the “Burn” composition and Confessions Album associated with or otherwise endorsed by Plaintiff. Defendants conduct is in willful and deliberate violation of section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) (1) (A) and highly damaging to Plaintiff’s reputation and specific financial entitlements.
36. Defendants have profited and continue to profit from their unlawful conduct and will, unless restrained, further impair Plaintiff’s goodwill and reputation, and Plaintiff will suffer irreparable injury which cannot be adequately calculated or compensated solely by money damages.
Reading this count reminded us of the recent holding in Contractual Obligations Productions LLC v. AMC Networks, Inc., No. 04 cv 2867, 4/7/08 NYLJ "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2008) which cited Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) for the proposition that the Lanham Act does not apply to claims arising out of failure to credit or attribute the origin of a creative work.
April 7, 2008
Fuego Agrees to Restraint
Fuego Entertainment has agreed not to release recordings purportedly made during Ringo Starr's first performance with the Beatles until the suit is resolved.
"This is an injunction that was agreed to by our clients with no admission of liability to give the court time to consider the parties' claims regarding the ownership interests in these recordings," Feugo's attorney said.
Apple countered, "[this] clearly reflects that there is no basis for Fuego's claims that they have a right to exploit the tapes."
[Background here.]
"This is an injunction that was agreed to by our clients with no admission of liability to give the court time to consider the parties' claims regarding the ownership interests in these recordings," Feugo's attorney said.
Apple countered, "[this] clearly reflects that there is no basis for Fuego's claims that they have a right to exploit the tapes."
[Background here.]
Chinese Firms Face the Music on Downloads
Wall Street Journal reports:
A Chinese court has agreed to consider copyright-infringement cases against two China-based Internet heavyweights that offer illicit music downloading, potentially pening Chinese companies to hefty damage claims they have previously dodged.
The music-industry lawsuits claim $9 million in damages against Baidu.com Inc., and $7.5 million against Sogou, the music-delivery service operated by Sohu.com Inc.
Oh, Nelly!
Juan Antonio Castro Rios p/k/a/ Tony Tun Tun v. Coalition Music, LLC et. al, No. 1:08-cv-20922-AJ (S.D.Fla filed Apr. 4, 2008).
Allegations:
Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.
Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.
The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.
Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.
Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".
[Request copy of the complaint]
Allegations:
Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.
Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.
The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.
Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.
Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".
[Request copy of the complaint]
ODB - In the News, from the Grave
New York Supreme Court, complaint filed:
Jarred Weisfeld; Cherry Jones v. Richard Flanzer; Control Room Productions LLC; Safe Productions Inc.; Icelene Jones individually and as the administrator of the estate of Russell Jones pka ODB; Ol' Dirty Bastard. No.08-601002, filed 4/4/2008
Summons for declaratory judgment, intentional interference with contractual rights, and breach of contract. $500,000.
Jarred Weisfeld; Cherry Jones v. Richard Flanzer; Control Room Productions LLC; Safe Productions Inc.; Icelene Jones individually and as the administrator of the estate of Russell Jones pka ODB; Ol' Dirty Bastard. No.08-601002, filed 4/4/2008
Summons for declaratory judgment, intentional interference with contractual rights, and breach of contract. $500,000.
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