Zappa v Rykodisc Decision

Gail Zappa v. Rykodisc, Inc., 08 Civ. 396 (WHP), NYLJ 1202512134305, at *1 (S.D.N.Y. decided August 17, 2011)

Summary Judgments In MP3Tunes Case

Capitol Records, Inc. v. MP3Tunes, LLC, 1:07-cv-09931-WHP (S.D.N.Y. filed 8/22/2011) [Doc. 267].

"This case turns in large part on whether MP3tunes is eligible for protection under the safe harbors created by the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512."

The Court addressed Plaintiff's argument that MP3tunes failed to reasonably implement a repeat infringer policy. The court distinguished between "blatant infringers" and users who merely consume the content and found "this applies to MP3tunes executives." There was no evidence that executives or employees had firsthand knowledge that websites linked on the sideload.com website were unauthorized. Additionally, MP3tunes did nor purposefully blind itself to its users' identities and activities, and had a procedure for responding to DMCA takedown notices.

The Court next addressed MP3tune's compliance with Plaintiff's take-down notices. The court found that MP3tunes was obligated to remove specifice works traceable to users' "lockers" and that MP3tunes interpreted the reach of Plaintiff's notices too narrowly. However, MP3tunes was not obligated to take down all of Plaintiff's cotnent because the notices provided a representative list. Plaintiff had to provide sufficient information --additional web addresses -- for MP3tunes to locate other infringing material. "Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers."

The Court next addressed actual or "red flag" knowledge of infringement. The Court found that MP3tunes "undoubtedly...is aware that some level of infringement occurs. But there is no genuine dispute that MP3tunes did not have specific 'red flag' knowledge with respect to any particular link...other than the URLs noticed [in the DMCA takedowns]."

The Court next addressed defendant's benefit and control of infringing activity, finding "at worst, MP3tunes set up a fully automated system where users can choose to download infringing content."

In sum, MP3tunes could claim safe harbor protection for plaintiff's works stored on and linked to on the websites. However, MP3tunes did not qualify for safe harbor protection for songs identified in takedown notices which it failed to remove.

The Court then turned to whether MP3tunes is secondarily liable for storing material at the direction if its users. The court found that MP3tunes knowledge of the unauthorized use of infringing material "is manifest." "Accordingly, [Plaintiff's] motion for summary judgment on its claim for contributory infringement with respect to the songs listed in [Plaintiff's] takedown notices and which MP3tunes failed to removed from users' lockers is granted."

The Court next turned to direct infringment. Plaintiff motion with respect to songs downloaded by employees was denied because there was a dispute as to whether the songs were downloaded by employees in the course of their employment. On the other hand, an individual named defendant was directly liable for the songs personally "sideloaded" from unauthorized sites.

"Hey Micky!" Malpractice Action Survives Dismissal

Basilotta v. Warshavsky, 115524/09, NYLJ 1202511322101, at *1 (Sup.Ct., N.Y. Co., decided August 2, 2011)

The singer of the 1980's hit song that starts "Oh Micky you're so fine, you're so fine you blow my mind! Hey Mickey!" can proceed with her malpractice action against an attorney she claims failed to diligently protect her rights to the song. The Court found that the suit was not time barred.

Transfer To Florida Appropriate Where Only Connection To New York Is Internet Access

Caldwell v. Slip-N-Slide Records, Inc., 10 Civ. 9106 (JFK), NYLJ 1202510748971, at *1 (SDNY, Decided July 26, 2011).

The Court granted defendants' motion to transfer to federal court in Florida, pursuant to 28 USC 1401(a). "Plaintiff brings this suit in New York under the theory that the allegedly infringing song was distributed in New York over the Internet, including through YouTube and iTunes. As the only apparent connection to this forum is the distribution of "Bond Money" over the Internet, a fact which would support venue in any district court in this country, Plaintiff's choice of forum is entitled to little weight."

Plaintiff alleged that in 2001 he created the musical composition and sound recording of a song entitled "Dim Hits," which he later registered with the United States Copyright Office. In 2004, Plaintiff gave a copy of "Dim Hits" to a vocalist known as Trina, who has a recording contract with the Defendants. In 2008, Plaintiff discovered that the Defendants had allegedly copied "Dim Hits," without his permission, and incorporated it into a song titled "Bond Money." Plaintiff also alleges that the Defendants have distributed "Bond Money" on several albums, web sites, and other outlets throughout the United States.

None of the parties demonstrated ties to New York. Plaintiff was a resident of Charlotte, North Carolina. Defendant corporation was a Florida corporation that "promotes, develops, markets and manages recording artists," with its principal place of business and sole office in Miami Beach, Florida. The song "Bond Money" was purportedly written and recorded in Florida. Individual defendants were a Florida and Georgia resident. Another corporate defendant was a Phoenix, Arizona limited liability company.

Black Keys' Sue Over Commercial

Dan Auerbach; Patrick Carney dba McMoore McLessT Publishing v. Della Femina/Rothschild/Jeary Partners; Della Femina & Gianettino Inc.; Valley National Bancorp; Valley National Bank, Index No. 1:11 CV 4902 (S.D.N.Y. filed 7/15/2011).

The Black Keys (in the author's opinion, the pride of Akron, Ohio!) bring a copyright infringement action for defendants' unauthorized use of their song "Tighten Up" in a television commercial. Plaintiffs allege defendants incorporated significant portions of the copyrighted recording without first obtaining plaintiffs' consent or a license.

Attorney's Fees Denied In Copyright Case

Canal+ Image UK Ltd. v. Lutvak, 10 Civ. 1536 (RJH), NYLJ 1202498072915, at *1 (SDNY, Decided June 8, 2011).

The Court had previously dismissed the action for copyright infringement and breach of contract. Defendants, a lyricist and a songwriter, moved pursuant to Federal Rule of Civil Procedure 54(d)(2) for an award of attorney's fees under the Copyright Act, 17 U.S.C. §505. The Court denied the motion.

Artist Has Label's Claims Dismissed; Judgment On Counterclaims

Alistair Records, Inc., v. Adams, 603695/09, NYLJ 1202497369670, at *1 (Sup., NY, Decided May 20, 2011).

Defendant recording artist's motion for an order amending the caption to reflect the correct name of plaintiff record label, "Alistair Records, LLC" is granted. Defendant artist's motion for entry of a default judgment on his breach of contract counterclaim against plaintiff label is granted ($6,000). Artist's motion for entry of a default judgment on his counterclaim for rescission is denied and that counterclaim is severed and dismissed. Artist's remaining counterclaims continue.

Artist's motion for summary judgment dismissing the complaint (seeking injunction and $750,000) is granted. Record label failed to submit any evidentiary facts to controvert the claims in artist's motion.