Matter of Columbia Artists Management LLC (Commissioner of Labor), 2013 NY Slip Op 06043 (3d Dep't Sep. 26, 2013).
A New York appellate court held that a music management company and tour promoter is liable for unemployment insurance contributions on its payments to musicians who perform on tour at the musical productions, even though the company considers the musicians "independent contractors." Laborers/"loaders", however, are not considered employees.
September 27, 2013
September 20, 2013
Safe Harbor Does Not Protect Vimeo For All Videos
Capitol Records v. Vimeo, No. 1:09-cv-10101-RA (S.D.N.Y. Opinion & Order filed 09/18/13) [Doc. 119].
Plaintiffs are record labels and publishers that brought a copyright infringement action against Vimeo, an online video sharing platform. Vimeo moved for summary judgment, asserting entitlement to “safe harbor” protection pursuant to the DMCA. Plaintiffs cross-moved for partial summary judgment seeking a ruling that Vimeo is ineligible for such protection. The question before the Court was whether Vimeo is entitled to safe harbor protection pursuant to the DMCA. The Court held that triable issues of fact remained as to whether Vimeo is entitled to safe harbor protection as to fifty-five of the videos that Vimeo employees interacted with or uploaded. However, the Court held that Vimeo was entitled to summary judgment as to the remaining 144 videos at issue in the suit.
First, the Court considered threshold criteria whether Vimeo is eligible for safe-harbor protection. The Court found that Vimeo is a "service provider", it had adopted and reasonably implemented a "repeat infringer policy", and it did not interfere with standard technical measures. Thus, Vimeo was eligible for safe-harbor protection.
Having satisfied the threshold criteria, the Court considered whether Vimeo met the requirements of § 512(c), which apply to any claims “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” As to 10 of the videos, the Court found a triable issue with respect to whether certain employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope
of their employment. Also, the Court found triable issues exist as to whether Vimeo acquired actual or red flag knowledge of the infringing content in 55 videos with which Vimeo employees interacted (e.g., commented on the videos, "liked" the videos, placed on channels etc.) By contrast, there was no evidence that Vimeo acquired actual or red flag knowledge as to 144 videos with which Vimeo employees indisputably did not interact, and Vimeo was thus entitled to summary judgment as to these videos.
Plaintiffs' "willful blindness" arguments failed. The Court noted that service providers are under no affirmative duty to seek out infringement, even when they possess technological measures permitting them to do so.
Also, the Court concluded that Vimeo lacked the right and ability to control infringing activity. The Court considered the totality of Vimeo’s monitoring program, and rejected Plaintiffs’ arguments and found no triable issue as to the exertion of substantial influence on user activity. The Court also rejected Plaintiffs' argument that Vimeo exerted substantial influence on its users’ activities through inducement.
The Court also concluded that Vimeo acted expeditiously when it removed videos pursuant to take-down notices.
Lastly, the Court concluded that DMCA protection did not apply to pre-1972 sound recordings. The Court recognized other authority in the SDNY that found otherwise, but found the recent decision by the New York First Dep't, UMG Recordings, Inc. v. Escape Media Grp., Inc., 964 N.Y.S.2d 106 (1st Dep’t 2013), and the December 2011 Copyright Office Report concluding that the DMCA safe harbors do not apply to pre-1972 records. Accordingly, even those 144 videos that were otherwise protected by the DMCA are not protected if they are pre-72 recordings.
Plaintiffs are record labels and publishers that brought a copyright infringement action against Vimeo, an online video sharing platform. Vimeo moved for summary judgment, asserting entitlement to “safe harbor” protection pursuant to the DMCA. Plaintiffs cross-moved for partial summary judgment seeking a ruling that Vimeo is ineligible for such protection. The question before the Court was whether Vimeo is entitled to safe harbor protection pursuant to the DMCA. The Court held that triable issues of fact remained as to whether Vimeo is entitled to safe harbor protection as to fifty-five of the videos that Vimeo employees interacted with or uploaded. However, the Court held that Vimeo was entitled to summary judgment as to the remaining 144 videos at issue in the suit.
First, the Court considered threshold criteria whether Vimeo is eligible for safe-harbor protection. The Court found that Vimeo is a "service provider", it had adopted and reasonably implemented a "repeat infringer policy", and it did not interfere with standard technical measures. Thus, Vimeo was eligible for safe-harbor protection.
Having satisfied the threshold criteria, the Court considered whether Vimeo met the requirements of § 512(c), which apply to any claims “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” As to 10 of the videos, the Court found a triable issue with respect to whether certain employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope
of their employment. Also, the Court found triable issues exist as to whether Vimeo acquired actual or red flag knowledge of the infringing content in 55 videos with which Vimeo employees interacted (e.g., commented on the videos, "liked" the videos, placed on channels etc.) By contrast, there was no evidence that Vimeo acquired actual or red flag knowledge as to 144 videos with which Vimeo employees indisputably did not interact, and Vimeo was thus entitled to summary judgment as to these videos.
Plaintiffs' "willful blindness" arguments failed. The Court noted that service providers are under no affirmative duty to seek out infringement, even when they possess technological measures permitting them to do so.
Also, the Court concluded that Vimeo lacked the right and ability to control infringing activity. The Court considered the totality of Vimeo’s monitoring program, and rejected Plaintiffs’ arguments and found no triable issue as to the exertion of substantial influence on user activity. The Court also rejected Plaintiffs' argument that Vimeo exerted substantial influence on its users’ activities through inducement.
The Court also concluded that Vimeo acted expeditiously when it removed videos pursuant to take-down notices.
Lastly, the Court concluded that DMCA protection did not apply to pre-1972 sound recordings. The Court recognized other authority in the SDNY that found otherwise, but found the recent decision by the New York First Dep't, UMG Recordings, Inc. v. Escape Media Grp., Inc., 964 N.Y.S.2d 106 (1st Dep’t 2013), and the December 2011 Copyright Office Report concluding that the DMCA safe harbors do not apply to pre-1972 records. Accordingly, even those 144 videos that were otherwise protected by the DMCA are not protected if they are pre-72 recordings.
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.
ASCAP Required To License ALL Songs In Its Repertory To Pandora
In re Petition of Pandora Media, Inc., No. 1:12-cv-08035-DLC (S.D.N.Y. Opinion & Order filed 09/17/13) [Doc. 70], related to U.S. v. ASCAP, No. 41 Civ. 1395.
ASCAP must license all songs in its repertory to Pandora, even though certain music publishers have purported to withdraw from ASCAP the right to license their compositions to “New Media” services such as Pandora, holds the ASCAP rate court in interpreting the consent decree under which ASCAP operates. "Because the language of the consent decree unambiguously requires ASCAP to provide Pandora with a license to perform all of the works in its repertory, and because ASCAP retains the works of 'withdrawing' publishers in its repertory even if it purports to lack the right to license them to a subclass of New Media entities, Pandora’s motion for summary judgment is granted."
In April 2011, ASCAP began to allow members to withdraw from ASCAP its rights to license their music to New Media outlets, while allowing ASCAP to retain the right to license those works to other outlets. Subsequently, several music publishers withdrew their New Media licensing rights from ASCAP, and Pandora then engaged in license negotiations directly with those publishers. On July 1, 2013, Pandora filed a motion for summary judgment, seeking a determination that “ASCAP publisher ‘withdrawals’ [of New Media rights] during the term of Pandora’s consent decree license do not affect the scope of the ASCAP
repertory subject to that license." ASCAP argued that “’ASCAP repertory’ refers only to the rights in musical works that ASCAP has been granted by its members as of a particular moment in time.” Pandora argued that ASCAP repertory” is a “defined term[] articulated in terms of ‘works’ or ‘compositions,’ as opposed to in terms of a gerrymandered parcel of ‘rights.’” The Court found that Pandora was correct. “ASCAP repertory” is defined in the consent decree in terms of “works” and not “individual rights” in works with respect to classes of potential licensees. The Court also held that Pandora's subsequent negotiations with the publishers did not alter interpretation of the consent decree because Pandora is not a party to the consent decree.
ASCAP must license all songs in its repertory to Pandora, even though certain music publishers have purported to withdraw from ASCAP the right to license their compositions to “New Media” services such as Pandora, holds the ASCAP rate court in interpreting the consent decree under which ASCAP operates. "Because the language of the consent decree unambiguously requires ASCAP to provide Pandora with a license to perform all of the works in its repertory, and because ASCAP retains the works of 'withdrawing' publishers in its repertory even if it purports to lack the right to license them to a subclass of New Media entities, Pandora’s motion for summary judgment is granted."
In April 2011, ASCAP began to allow members to withdraw from ASCAP its rights to license their music to New Media outlets, while allowing ASCAP to retain the right to license those works to other outlets. Subsequently, several music publishers withdrew their New Media licensing rights from ASCAP, and Pandora then engaged in license negotiations directly with those publishers. On July 1, 2013, Pandora filed a motion for summary judgment, seeking a determination that “ASCAP publisher ‘withdrawals’ [of New Media rights] during the term of Pandora’s consent decree license do not affect the scope of the ASCAP
repertory subject to that license." ASCAP argued that “’ASCAP repertory’ refers only to the rights in musical works that ASCAP has been granted by its members as of a particular moment in time.” Pandora argued that ASCAP repertory” is a “defined term[] articulated in terms of ‘works’ or ‘compositions,’ as opposed to in terms of a gerrymandered parcel of ‘rights.’” The Court found that Pandora was correct. “ASCAP repertory” is defined in the consent decree in terms of “works” and not “individual rights” in works with respect to classes of potential licensees. The Court also held that Pandora's subsequent negotiations with the publishers did not alter interpretation of the consent decree because Pandora is not a party to the consent decree.
September 12, 2013
Beastie Boys Avoid Several Copyright Claims In Sampling Case
TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
September 11, 2013
Radio Station Not Liable On Claims Based On Number Of Podcast Downloads
Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc., 2013 ILRC
2580, 2013 WL 4516739 (Ga. Ct. App. 2013).
Plaintiff advertised its music education services on defendant's radio station, but failed to pay. The radio station sued for "open account", and the plaintiff counter-claimed for breach of contract and fraud. The crux of plaintiff's claims was that the radio station misrepresented the exposure it would provide through podcast downloads. According to plaintiff, the radio station failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program plaintiff sponsored and, as a result, plaintiff did not receive the advertising exposure it had bargained for.
The court found that the radio station was not liable on the breach of contract claim because the plaintiff failed to present any evidence to show that the radio station promised that there would be a certain number of future downloads of the program. Instead, the radio station "promoted the program's national popularity by stating that it 'has received hundreds of thousands of downloads,' in other words, in the past". The fraud claim similarly failed because the plaintiff sought, not a certain number of downloads, but, rather, to sponsor a radio show for a specific time period. Any prediction regarding future download statistics would be conjecture, falling short of fraud.
Plaintiff advertised its music education services on defendant's radio station, but failed to pay. The radio station sued for "open account", and the plaintiff counter-claimed for breach of contract and fraud. The crux of plaintiff's claims was that the radio station misrepresented the exposure it would provide through podcast downloads. According to plaintiff, the radio station failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program plaintiff sponsored and, as a result, plaintiff did not receive the advertising exposure it had bargained for.
The court found that the radio station was not liable on the breach of contract claim because the plaintiff failed to present any evidence to show that the radio station promised that there would be a certain number of future downloads of the program. Instead, the radio station "promoted the program's national popularity by stating that it 'has received hundreds of thousands of downloads,' in other words, in the past". The fraud claim similarly failed because the plaintiff sought, not a certain number of downloads, but, rather, to sponsor a radio show for a specific time period. Any prediction regarding future download statistics would be conjecture, falling short of fraud.
YMCA Termination Rights
From the New York Times (article here):
A Copyright Victory, 35 Years Later
Victor Willis, a former member of the Village People, is set to take control of a share of the copyright to songs he wrote for the group.
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