Mahoney v. Sony Music Entertainment, No. 1:12-cv-05045 (S.D.N.Y. filed 02/11/13) [Doc. 39].
Plaintiff Edward Mahoney brought this breach of contract action against Sony Music Entertainment for damages arising from a dispute over the amount of royalties owed under the parties' contract. The parties' relationship is governed by a 1985 Agreement and 1991 amendment (collectively, the "Contract"). The Contract requires Sony to pay royalties to Mahoney in exchange for certain uses of Mahoney's musical recordings. Sony moved to dismiss Mahoney's third amended complaint, other than a digital downloads claim, alleging that Mahoney failed to comply with the Contract's notice-and-cure provision, a condition precedent to bringing a breach of contract claim.
The Magistrate Judge first discussed the standard on a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Then, the Magistrate Judge discussed the proper circumstances to consider documents beyond those attached to the Complaint, and found that the Contract and the notice letters referred to in the third amended complaint and attached to the parties' motion papers may be considered on the motion to dismiss.
Turning to the merits, the Magistrate Judge found that plaintiff's breach of contract claims should not be dismissed for alleged noncompliance with the Contract's notice requirement. The Court found that Mahoney's third amended complaint expressly alleged compliance with the Contract's notice requirement. Further, the parties did not dispute that Mahoney sent and Sony received the letters, i.e., the two writings Mahoney proffered as notice letters. Rather, Sony's challenged the adequacy of the purported notice, i.e., whether Mahoney's letters identified the nature of Mahoney's objections to the royalty statements with sufficient specificity.
Thus, the Magistrate Judge considered the standards for evaluating the sufficiency of the notice. Applying those standards to the case, the Magistrate Judge found that the Contract's notice provision called for written notice of any alleged royalty deficiencies, but did not state what information must be contained in the notice. "The Court will not allow the Contract's notice provisions to require, in essence, an audit before suit when the Contract did not directly require an audit." Continuing, "this is not a case where the objecting party sent a vague notice and the allegedly breaching party (here, Sony) was precluded from curing because it could not obtain additional information; rather, Mahoney and Sony engaged in ongoing discussions of Mahoney's claims, during which they discussed the bases for Mahoney's objections and the potential for litigation in the absence of a resolution, and Sony had control of all of the royalty-related information." Thus, in this context, the Magistrate Judge found that Mahoney's notice was sufficient to serve the general purpose of the contractual royalty notice requirement. For these reasons, the Magistrate Judge recommended that Sony's motion to dismiss in part Mahoney's third amended complaint should be DENIED.
February 13, 2013
Chubby Checker Files Trademark Case
Evans v. Hewlett Packard Co., (S.D. Fl. filed Feb. 11, 2013).
Chubby Checker, famous for "The Twist", sued Hewlett Packard and Palm for, inter alia, trademark infringement in relation to a mobile app available on Palm devices called “The Chubby Checker.” The app allows users to calculate the size of a man's penis based on his shoe size.
Chubby Checker, famous for "The Twist", sued Hewlett Packard and Palm for, inter alia, trademark infringement in relation to a mobile app available on Palm devices called “The Chubby Checker.” The app allows users to calculate the size of a man's penis based on his shoe size.
January 31, 2013
Vogue Sample Suit Against Madonna Survives Dismissal
VMG Salsoul LLC v. Ciccone, No. 2:12-cv-5967 (C.D. Cal. filed 1/29/13) [Doc. 29].
Defendant's motion to dismiss under Rule 12(b)(6) -- on the basis of de minimis copying and statute of limitations -- denied.
The factual allegations are: Plaintiff owns the composition and sound recording copyrights of "Love Break", released in or about 1977. Defendants Madonna and Pettibone are “credited with creating the
sound recording” of the song “Vogue,” a “tremendously” successful single that has been on several “top
ten” lists of the best dance songs of the 1990s and was performed by Madonna at the Super Bowl halftime
show on February 5, 2012. Plaintiff alleges that Defendant “sampled” “numerous but intentionally hidden” portions of Love Break into Vogue—specifically, that the horn and strings in Vogue are “intentionally sampled from Love Break throughout.” It further alleges that the sampled portions of Love Break were “intentionally hidden” throughout Vogue, “so as to avoid detection.”
In addressing the Defendants' argument that any copying was de minimis, the Court found that such argument was better suited for summary judgment and should not be decided on a motion to dismiss. Similarly, on the statute of limitations argument, the Court found that evidence was required to determine whether the plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.
Defendant's motion to dismiss under Rule 12(b)(6) -- on the basis of de minimis copying and statute of limitations -- denied.
The factual allegations are: Plaintiff owns the composition and sound recording copyrights of "Love Break", released in or about 1977. Defendants Madonna and Pettibone are “credited with creating the
sound recording” of the song “Vogue,” a “tremendously” successful single that has been on several “top
ten” lists of the best dance songs of the 1990s and was performed by Madonna at the Super Bowl halftime
show on February 5, 2012. Plaintiff alleges that Defendant “sampled” “numerous but intentionally hidden” portions of Love Break into Vogue—specifically, that the horn and strings in Vogue are “intentionally sampled from Love Break throughout.” It further alleges that the sampled portions of Love Break were “intentionally hidden” throughout Vogue, “so as to avoid detection.”
In addressing the Defendants' argument that any copying was de minimis, the Court found that such argument was better suited for summary judgment and should not be decided on a motion to dismiss. Similarly, on the statute of limitations argument, the Court found that evidence was required to determine whether the plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.
January 29, 2013
Sex Pistols Photo Infringed By Artist
Morris v. Young, No. 12-cv-00687 (C.D. Cal. filed 1/28/2013) [Doc. 29].
Plaintiff sued defendant seeking damages for copyright infringement and an injunction enjoining defendant from further infringement of Plaintiff's photograph of the musicians Sid Vicious and Johnny Rotten of the punk rock bank, the Sex Pistols. Sometime in the mid-2000s, defendant created a series of works based on images of the Sex Pistols that he found on the Internet. None of the images defendant used in this series contained copyright notices, and defendant therefore believed they were in the public domain. Among the unmarked images defendant found on the Internet was the subject photograph. Defendant used the image of the Subject Photograph he found on the Internet to create several works that are the subject of this case. Prior to the initiation of this lawsuit, Young Defendant earned a total of $8,940 from sales of the accused works.
First, the Court found that plaintiff had established ownership of a valid copyright in the photograph. Next, the Court focused on actionable copying. Plaintiff can establish copying either by direct evidence of copying or by showing that defendant (1) had access to the work and (2) that the two works are substantially similar in idea and expression. It was undisputed that defendant found an image of the Subject Photograph on the Internet and copied it to make the Accused Works. "Accordingly, the Court need not rely on evidence of access and substantial similarity to determine whether a copying took place because the undisputed evidence shows that Young copied the Subject Photograph."
Next, the Court underwent a "fair use" analysis. First, the commercial nature of the use weighed against a finding of fair use. Additionally, the Court found that defendant's work added only marginal artistic innovation to the photograph to change the aesthetic expression of the work. Moreover, it did not appear that defendant intended any distinct purpose or message when creating the works. The use was, thus, not transformative. Second, the court found that the nature of the copyrighted work was creative and thus weighed against a finding of fair use. Third, the Court considered whether the amount of the work used was reasonable in relation to the purpose of the copying; defendant used most or all of the subject photograph to create his works and this weighed against fair use. Finally, the Court considered the effect of the use on the potential market or value of the copyrighted work.
Accordingly, the court granted Plaintiff summary judgment on one of the works. However, the Court found questions of fact on the fair use defense for another of the works.
Plaintiff sued defendant seeking damages for copyright infringement and an injunction enjoining defendant from further infringement of Plaintiff's photograph of the musicians Sid Vicious and Johnny Rotten of the punk rock bank, the Sex Pistols. Sometime in the mid-2000s, defendant created a series of works based on images of the Sex Pistols that he found on the Internet. None of the images defendant used in this series contained copyright notices, and defendant therefore believed they were in the public domain. Among the unmarked images defendant found on the Internet was the subject photograph. Defendant used the image of the Subject Photograph he found on the Internet to create several works that are the subject of this case. Prior to the initiation of this lawsuit, Young Defendant earned a total of $8,940 from sales of the accused works.
First, the Court found that plaintiff had established ownership of a valid copyright in the photograph. Next, the Court focused on actionable copying. Plaintiff can establish copying either by direct evidence of copying or by showing that defendant (1) had access to the work and (2) that the two works are substantially similar in idea and expression. It was undisputed that defendant found an image of the Subject Photograph on the Internet and copied it to make the Accused Works. "Accordingly, the Court need not rely on evidence of access and substantial similarity to determine whether a copying took place because the undisputed evidence shows that Young copied the Subject Photograph."
Next, the Court underwent a "fair use" analysis. First, the commercial nature of the use weighed against a finding of fair use. Additionally, the Court found that defendant's work added only marginal artistic innovation to the photograph to change the aesthetic expression of the work. Moreover, it did not appear that defendant intended any distinct purpose or message when creating the works. The use was, thus, not transformative. Second, the court found that the nature of the copyrighted work was creative and thus weighed against a finding of fair use. Third, the Court considered whether the amount of the work used was reasonable in relation to the purpose of the copying; defendant used most or all of the subject photograph to create his works and this weighed against fair use. Finally, the Court considered the effect of the use on the potential market or value of the copyrighted work.
Accordingly, the court granted Plaintiff summary judgment on one of the works. However, the Court found questions of fact on the fair use defense for another of the works.
Royalties "Trickle" - New York Times
Ben Sisario, "As Music Streaming Grows, Royalties Slow to a Trickle", New York Times (published Jan. 28, 2013). Link here.
Blurb from NYTimes: "Companies like Spotify and Pandora are catching fire, but the money paid to artists is often tiny, perhaps half a penny per play, which has the music industry on edge."
Blurb from NYTimes: "Companies like Spotify and Pandora are catching fire, but the money paid to artists is often tiny, perhaps half a penny per play, which has the music industry on edge."
January 23, 2013
Black Keys Sue For Unauthorized Use Of "Howlin'" In Casino Ads
Carney et al. v. Chesky Records, Inc., No. 13-cv-0405 (S.D.N.Y. filed Jan. 17, 2013) (Batts, J.)
The Black Keys sued in New York federal court "to put an immediate stop to, and to obtain redress for, Defendant's blatant and purposeful infringement of the copyright in Plaintiffs' musical composition entitled 'Howlin' For You'." (Complaint, para. 1). Defendants allegedly created and publicized commercial advertisements for casinos which prominently feature significant portions of the composition without authorization. Plaintiffs' claims are for copyright infringement, false designation of origin (under section 43(a) of the Lanham Act), and common law unfair competition.
The Black Keys sued in New York federal court "to put an immediate stop to, and to obtain redress for, Defendant's blatant and purposeful infringement of the copyright in Plaintiffs' musical composition entitled 'Howlin' For You'." (Complaint, para. 1). Defendants allegedly created and publicized commercial advertisements for casinos which prominently feature significant portions of the composition without authorization. Plaintiffs' claims are for copyright infringement, false designation of origin (under section 43(a) of the Lanham Act), and common law unfair competition.
January 15, 2013
3d Cir. Affirms Dismissal of Author's Suit Against 50 Cent
Winstead v. Jackson, No. 11-3771 (3d Cir. opinion filed Jan. 11, 2013).
The Third Circuit affirmed an order of the District Court dismissing the amended complaint as to all defendants. In this copyright case, the parties respective works at issue include Plaintiff's book, The Preacher’s Son – But the Streets Turned Me into a Gangster, and defendant Curtis Jackson's (50 Cent's) Before I Self-Destruct album/CD, featuring songs and lyrics written by Jackson; and his companion film of the same name, which Jackson wrote, starred in, and directed. Jackson and the record companies moved to dismiss the amended complaint pursuant to Fed. R. Civ. Pro. 12(b)(6), arguing that the copyright infringement claim failed because Plaintiff's book and Jackson's album/CD and film are not substantially similar as a matter of law, and that Plaintiff's state law claims are preempted by the Copyright Act because they are premised on the same underlying facts. The Circuit Court affirmed dismissal, finding inter alia:
We agree with the District Court that a lay observer would not believe that Jackson's album/CD and film copied protectable aspects of [Plaintiff]'s book.
***
There was a failure to state an actionable claim for copyright infringement here because, although [Plaintiff]'s book and Jackson's works share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been a part of the public domain.
***
In addition, [Plaintiff]'s book and Jackson's works are different with respect to character, plot, mood, and sequence of events.
***
[Plaintiff] contends that direct phrases from his book appear in Jackson's film. ... The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique and protectable. ... Moreover, words and short phrases do not enjoy copyright protection.
The Third Circuit affirmed an order of the District Court dismissing the amended complaint as to all defendants. In this copyright case, the parties respective works at issue include Plaintiff's book, The Preacher’s Son – But the Streets Turned Me into a Gangster, and defendant Curtis Jackson's (50 Cent's) Before I Self-Destruct album/CD, featuring songs and lyrics written by Jackson; and his companion film of the same name, which Jackson wrote, starred in, and directed. Jackson and the record companies moved to dismiss the amended complaint pursuant to Fed. R. Civ. Pro. 12(b)(6), arguing that the copyright infringement claim failed because Plaintiff's book and Jackson's album/CD and film are not substantially similar as a matter of law, and that Plaintiff's state law claims are preempted by the Copyright Act because they are premised on the same underlying facts. The Circuit Court affirmed dismissal, finding inter alia:
We agree with the District Court that a lay observer would not believe that Jackson's album/CD and film copied protectable aspects of [Plaintiff]'s book.
***
There was a failure to state an actionable claim for copyright infringement here because, although [Plaintiff]'s book and Jackson's works share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been a part of the public domain.
***
In addition, [Plaintiff]'s book and Jackson's works are different with respect to character, plot, mood, and sequence of events.
***
[Plaintiff] contends that direct phrases from his book appear in Jackson's film. ... The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique and protectable. ... Moreover, words and short phrases do not enjoy copyright protection.
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