Plaintiffs, successors-in-interest to the rights/copyrights of George Gershwin -- composer of iconic 20th Century music such as "Porgy and Bess" and "Rhapsody in Blue" - brought a contract action seeking to redress the Defendants' failure to pay music publishing royalties and other amounts ($5 million alleged damages). The claims at issue are related to, inter alia, foreign rentals, ballet licensing, concert grand rights licensing, and performance rights organizations registrations. Complaint here.
January 14, 2013
Gershwin et al. v. WB Music Corp., No. 650117/2013 (Sup. Ct., N.Y. Co. filed Jan. 11, 2013).
Plaintiffs, successors-in-interest to the rights/copyrights of George Gershwin -- composer of iconic 20th Century music such as "Porgy and Bess" and "Rhapsody in Blue" - brought a contract action seeking to redress the Defendants' failure to pay music publishing royalties and other amounts ($5 million alleged damages). The claims at issue are related to, inter alia, foreign rentals, ballet licensing, concert grand rights licensing, and performance rights organizations registrations. Complaint here.
Plaintiffs, successors-in-interest to the rights/copyrights of George Gershwin -- composer of iconic 20th Century music such as "Porgy and Bess" and "Rhapsody in Blue" - brought a contract action seeking to redress the Defendants' failure to pay music publishing royalties and other amounts ($5 million alleged damages). The claims at issue are related to, inter alia, foreign rentals, ballet licensing, concert grand rights licensing, and performance rights organizations registrations. Complaint here.
January 8, 2013
Dylan Outtakes Released To Extend European Copyright
Allan Kozinn, "Sony Issues Dylan CDs to Extend Copyright", New York Times (Arts, Jan. 8, 2013). Online here.
In sum, Sony issues an album of early, previously unreleased Bob Dylan recordings in order to take advantage of "use it or lose it" provisions under new European Union copyright law, extending protection from 50 to 70 years beginning in 2014.
In sum, Sony issues an album of early, previously unreleased Bob Dylan recordings in order to take advantage of "use it or lose it" provisions under new European Union copyright law, extending protection from 50 to 70 years beginning in 2014.
December 31, 2012
Sugarhill Sues Over "Uptown Anthem"
Sugarhill Music Publishing v. Warner/Chappel Music, Inc., No. 1:12-cv-09225-PAC (S.D.N.Y. complaint filed Dec. 19, 2012).
According to the complaint, plaintiff owns the copyright in the musical composition "That's The Joint" (1981), and defendants co-own the copyright in the musical composition "Uptown Anthem" (1991). Plaintiffs allege in paragraph 7 of the complaint that defendants' song incorporates plaintiff's song by "using the three-syllable vocal phrase 'We gonna' and rhythmic pattern a total of 41 times, as a strong hook in the song."
According to the complaint, plaintiff owns the copyright in the musical composition "That's The Joint" (1981), and defendants co-own the copyright in the musical composition "Uptown Anthem" (1991). Plaintiffs allege in paragraph 7 of the complaint that defendants' song incorporates plaintiff's song by "using the three-syllable vocal phrase 'We gonna' and rhythmic pattern a total of 41 times, as a strong hook in the song."
December 19, 2012
Trademark Denied; YouTube Clip Not Proper Specimen
In re Rogowski, 2012 ILRC 3251 (TTAB Dec. 11, 2012).
The TTAB affirmed a refusal to register a mark because a screen shot of a YouTube webpage that showed a trademark applicant playing music did not clearly indicate that the video could be downloaded, and thus the specimen failed to show that the mark was “used in commerce.”
As found by the TTAB:
The TTAB affirmed a refusal to register a mark because a screen shot of a YouTube webpage that showed a trademark applicant playing music did not clearly indicate that the video could be downloaded, and thus the specimen failed to show that the mark was “used in commerce.”
As found by the TTAB:
The submitted specimen, however, does not show the required
correspondence between the mark and the identified goods being offered for sale
or transport in commerce. We acknowledge the advent and certainly the trend of
music being offered in downloadable formats or the equivalent thereof in lieu of
the traditional trade channels for tangible sound recordings, e.g., CDs being
sold via retail or online stores. But we nonetheless find dispositive that
applicant's specimen does not include a “download” or similar link to put the
consumer on notice that the identified goods (“audio recordings featuring
music”) are indeed available for download or the equivalent thereof. We view
this failing as being similar to on-line retailing situations in which a webpage
specimen fails to show a means for ordering the goods or service. See, e.g., In re Osterberg, 83
USPQ2d 1220, 1224 (TTAB 2007) (webpage specimen did not directly provide a means
for ordering applicant's goods); In re Genitope
Corp. 78 USPQ2d 1819, 1822 (TTAB 2006) (same). Cf. In re Dell Inc., 71 USPQ2d
1725, 1727 (TTAB 2004) (website specimen for downloadable computer software
acceptable when it includes method to download, purchase or order the software).
See also, In re Sones, 590 F.3d 1282, 93 USPQ2d 1118, 1124 (Fed. Cir. 2009) (“Relevant factors
include, for example, whether Sones’ webpages have a ‘point of sale nature….’”)
(citation omitted).
We further acknowledge applicant's intent and his assertion that
viewers of his uploaded videos on YouTube may use third party software such as
RealPlayer to record the audio portions of the videos and ultimately transfer
this music file to an MP3 player or other devices and formats. However, on the
record before us, in the absence of a “download” link or the equivalent thereof,
applicant's specimen on its face fails to show use of his mark in commerce for
the identified goods
Sex Offender Violated New Hampshire Law In Registering For MySpace
New Hampshire v. White, 2012 ILRC 3223, 2012 WL 6062701, 2012 BL 321269 (N.H. Dec. 7, 2012).
Not the typical posting to this blog, but interesting in light of MySpace's historical reputation as a social media platform for bands and musicians. A New Hampshire criminal court dismissed an indictment against the defendant for violating a state statute (RSA 651-B:4-a) that requires registered sex offenders to report to law enforcement the creation of an “online identifier.” The Supreme Court of New Hampshire reversed and remanded, holding that a MySpace account includes “user profile information,” which, therefore, is an “online identifier” subject to the reporting requirement of the statute (RSA 651-B:4-a).
Not the typical posting to this blog, but interesting in light of MySpace's historical reputation as a social media platform for bands and musicians. A New Hampshire criminal court dismissed an indictment against the defendant for violating a state statute (RSA 651-B:4-a) that requires registered sex offenders to report to law enforcement the creation of an “online identifier.” The Supreme Court of New Hampshire reversed and remanded, holding that a MySpace account includes “user profile information,” which, therefore, is an “online identifier” subject to the reporting requirement of the statute (RSA 651-B:4-a).
December 18, 2012
Satellite Radio Royalty Rate Hike Reported
Sirius XM reports in an EDGAR filing:
"On December 14, 2012, the Copyright Royalty Board, or CRB, of the Library of Congress issued its determination regarding the royalty rate payable by us under the statutory license covering the performance of sound recordings over our satellite digital audio radio service, and the making of ephemeral (server) copies in support of such performances, for the five-year period starting January 1, 2013 and ending on
December 31, 2017. Under the terms of the CRB’s decision, we will pay a royalty of 9.0% of gross revenues, subject to certain exclusions, for 2013, 9.5% for 2014, 10.0% for 2015, 10.5% for 2016, and 11% for 2017. The rate for 2012 is 8.0%."
"On December 14, 2012, the Copyright Royalty Board, or CRB, of the Library of Congress issued its determination regarding the royalty rate payable by us under the statutory license covering the performance of sound recordings over our satellite digital audio radio service, and the making of ephemeral (server) copies in support of such performances, for the five-year period starting January 1, 2013 and ending on
December 31, 2017. Under the terms of the CRB’s decision, we will pay a royalty of 9.0% of gross revenues, subject to certain exclusions, for 2013, 9.5% for 2014, 10.0% for 2015, 10.5% for 2016, and 11% for 2017. The rate for 2012 is 8.0%."
December 13, 2012
Toto's Royalty Suit Against Sony Limited By Magistrate
Toto, Inc. v. Sony Music Entertainment, No. 12-cv-1434-LAK-AJP (SDNY report and recommendation Dec. 11, 2012).
Plaintiff Toto brought the action against Sony Music based on a dispute over the amount of royalties owed under the parties' recording contract. Sony moved to dismiss, and the motion was granted in part and denied in part. The primary issue in the case ise the royalty rate for music distributed through download and mastertone providers (e.g., iTunes, eMusic, Amazon.com and Verizon Wireless).
The magistrate judge found that Toto's first claim based on royalty accountings for the audit period should be dismissed as contractually time barred. The parties agreement had a 3 year limitation period (i.e., claims had to be brought within 3 years from the royalty report). Toto's argument that August 2010 and December 2011 documentation restarted the time limitation was unavailing. However, the magistrate judge found that the portion of Toto's first claim based on royalty accountings for the post-audit period should not be dismissed with respect to the digital download issue. In other words, Toto stated a claim for breach of the recording contract for the period within the contractually agreed to 3 year limitation period.
The magistrate judge also found that Toto failed to plead the elements of equitable estoppel. The Court held that purposefully delaying an audit was not a ground for invoking equitable estoppel. Also, participation in settlement negotiations was not a ground for invoking equitable estoppel.
The magistrate judge also found that Toto's claim for breach of the implied covenant of good faith and fair dealing should be dismissed. The claim did not state a distinct cause of action based on a separate set of facts and was not independent of the breach of contract claim. The good faith and fair dealing claim was duplicative of the breach of contract claim.
Plaintiff Toto brought the action against Sony Music based on a dispute over the amount of royalties owed under the parties' recording contract. Sony moved to dismiss, and the motion was granted in part and denied in part. The primary issue in the case ise the royalty rate for music distributed through download and mastertone providers (e.g., iTunes, eMusic, Amazon.com and Verizon Wireless).
The magistrate judge found that Toto's first claim based on royalty accountings for the audit period should be dismissed as contractually time barred. The parties agreement had a 3 year limitation period (i.e., claims had to be brought within 3 years from the royalty report). Toto's argument that August 2010 and December 2011 documentation restarted the time limitation was unavailing. However, the magistrate judge found that the portion of Toto's first claim based on royalty accountings for the post-audit period should not be dismissed with respect to the digital download issue. In other words, Toto stated a claim for breach of the recording contract for the period within the contractually agreed to 3 year limitation period.
The magistrate judge also found that Toto failed to plead the elements of equitable estoppel. The Court held that purposefully delaying an audit was not a ground for invoking equitable estoppel. Also, participation in settlement negotiations was not a ground for invoking equitable estoppel.
The magistrate judge also found that Toto's claim for breach of the implied covenant of good faith and fair dealing should be dismissed. The claim did not state a distinct cause of action based on a separate set of facts and was not independent of the breach of contract claim. The good faith and fair dealing claim was duplicative of the breach of contract claim.
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