Kelley v. Primco Management, Inc., No. 14-cv-07263 (C.D. Cal. Jan. 12, 2015).
Pop star Iggy Azalea obtained a preliminary injunction based on claims that Defendants misappropriated the contents of her computer and began releasing infringing songs and music videos. Defendants claims that they had authority to use Azalea's name, likeness and various intellectual property assets pursuant to a Recording Agreement. Azalea claimed that the document was forged, and that was the key issue before the Court because no party disputed that Defendants had exploited Azalea's copyrights, trademarks and right of publicity. The Court held an evidentiary hearing and discussed the evidence presented on whether the document was forged. It concluded that, even though there was sharply conflicting testimony, Azalea had at the very least raised serious questions about the validity of the agreement, and therefore had raised serious questions going to the merits of her claims which were enough to grant a preliminary injunction. The court then considered the factors necessary for a preliminary injunction -- likelihood of success on the merits, threat of irreparable harm, balancing the equities, and the public interest -- and found that an injunction was warranted. Azalea was ordered to post a $20,000 bond.
January 13, 2015
December 24, 2014
"Whomp! (There It Is)" $2 Million Jury Award Affirmed
In re: Isbell Records, Inc. (Isbell v. DM Records), No. 13-40878 (5th Cir. Dec. 18, 2014).
The Fifth Circuit affirmed a finding that plaintiff owned the copyright in the composition of the song "Whomp! (There It Is)", that defendant was liable for infringement based on its exploitation of the song for year, and the jury's award of over $2 million in damages. The primary issue was whether a 50% interest in the song had originally been assigned to the plaintiff or the defendant's predecessor-in-interest (the other 50% remained with the writers/producers of the song). The 5th Circuit held that California contract interpretation law applied, and that the lower court correctly found that the contract granted the 50% interest in the song to the plaintiff.
On appeal of defendant's trial motion under Fed. R. Civ. P. 50 for judgment as a matter of law, the defendant raised two issues regarding the district court's interpretation of the recording agreement as assigning a single 50% interest to plaintiff. First, the Court rejected defendant's argument that the lower court erred in interpreting the agreement without asking the jury to make any findings on extrinsic evidence. Second, the Court rejected defendant's argument that the agreement also assigned a second 50% interest in the composition copyright because the argument had not previously pursued that theory and had disclaimed the theory at an earlier hearing. In short, the defendant could not raise its "two assignments theory" after not previously asserting it at trial or in its earlier Rule 50 motion.
On appeal of defendant's motion under Fed. R. Civ. P. 60(b) for relief from judgment based on fraud and lack of standing, the Court rejected defendant's argument that it was prevented from presenting the defense of plaintiff's lack of standing. Even if the plaintiff had improperly withheld a certain document, it would not have affected plaintiff's standing and thus would not have affected defendant's defense.
With respect to the jury's damage award of over $2 million, the Court rejected defendant's argument that plaintiff should have only been awarded 1/2 of that amount as 50% owner of the copyright. First, defendant did not object to the jury charge during trial. And under the plain-error standard of review, the district court did not err. Notably, the 5th Circuit found that Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 268 (2d Cir. 1944), was inapplicable to the issue of first impression whether a partial owner of a copyright can ever be awarded infringement damages for his co-owner's share. Specifically, the jury could have found that plaintiff was entitled to 100% of the royalties in the first instance as administrator/publisher of the song. In other words, because plaintiff was obligated to account to the other 50% owners (the producers/writers), plaintiff could recover 100% damages and any issue as to distributions would be a separate case between the co-owners not involving the defendant.
Lastly, in affirming denial of defendant's Fed. R. Civ. P. 59 motion for a new trial, the Court found that plaintiff's closing statement -- referring to defendant as a "thief -- was not abusive and improper. Defendant did not object to the closing statement at trial and thus the standard of review was plain error. Evidence was presented at trial form which the jury could find that defendant's conduct was willful and that defendant stole the copyrights from plaintiff. Further, any prejudice was minimized by the judge's instructions and the statements concerned damages rather than liability. Further, plaintiff ultimateley elected actual damages which were higher than statutory damages, and willfulness is not an element of actual damages calculation.
The Fifth Circuit affirmed a finding that plaintiff owned the copyright in the composition of the song "Whomp! (There It Is)", that defendant was liable for infringement based on its exploitation of the song for year, and the jury's award of over $2 million in damages. The primary issue was whether a 50% interest in the song had originally been assigned to the plaintiff or the defendant's predecessor-in-interest (the other 50% remained with the writers/producers of the song). The 5th Circuit held that California contract interpretation law applied, and that the lower court correctly found that the contract granted the 50% interest in the song to the plaintiff.
On appeal of defendant's trial motion under Fed. R. Civ. P. 50 for judgment as a matter of law, the defendant raised two issues regarding the district court's interpretation of the recording agreement as assigning a single 50% interest to plaintiff. First, the Court rejected defendant's argument that the lower court erred in interpreting the agreement without asking the jury to make any findings on extrinsic evidence. Second, the Court rejected defendant's argument that the agreement also assigned a second 50% interest in the composition copyright because the argument had not previously pursued that theory and had disclaimed the theory at an earlier hearing. In short, the defendant could not raise its "two assignments theory" after not previously asserting it at trial or in its earlier Rule 50 motion.
On appeal of defendant's motion under Fed. R. Civ. P. 60(b) for relief from judgment based on fraud and lack of standing, the Court rejected defendant's argument that it was prevented from presenting the defense of plaintiff's lack of standing. Even if the plaintiff had improperly withheld a certain document, it would not have affected plaintiff's standing and thus would not have affected defendant's defense.
With respect to the jury's damage award of over $2 million, the Court rejected defendant's argument that plaintiff should have only been awarded 1/2 of that amount as 50% owner of the copyright. First, defendant did not object to the jury charge during trial. And under the plain-error standard of review, the district court did not err. Notably, the 5th Circuit found that Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 268 (2d Cir. 1944), was inapplicable to the issue of first impression whether a partial owner of a copyright can ever be awarded infringement damages for his co-owner's share. Specifically, the jury could have found that plaintiff was entitled to 100% of the royalties in the first instance as administrator/publisher of the song. In other words, because plaintiff was obligated to account to the other 50% owners (the producers/writers), plaintiff could recover 100% damages and any issue as to distributions would be a separate case between the co-owners not involving the defendant.
Lastly, in affirming denial of defendant's Fed. R. Civ. P. 59 motion for a new trial, the Court found that plaintiff's closing statement -- referring to defendant as a "thief -- was not abusive and improper. Defendant did not object to the closing statement at trial and thus the standard of review was plain error. Evidence was presented at trial form which the jury could find that defendant's conduct was willful and that defendant stole the copyrights from plaintiff. Further, any prejudice was minimized by the judge's instructions and the statements concerned damages rather than liability. Further, plaintiff ultimateley elected actual damages which were higher than statutory damages, and willfulness is not an element of actual damages calculation.
Copyright Royalty Board Royalty Rates For Performance Of Sound Recordings Affirmed
Music Choice v. Copyright Royalty Board, No. 13-1174/13-1183 (D.C. Cir. Dec. 19, 2014).
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
December 16, 2014
Tejano Music Infringement Claim Fails Because No Access And Not Enough Similarity
Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2014 BL 344493 (S.D. Tex. Dec. 09, 2014).
After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar. This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access. The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live. "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".
After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar. This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access. The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live. "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".
December 10, 2014
Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity
Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
December 5, 2014
Motion For Judgment As Matter Of Law, Or For New Trial, Denied In Beastie Boys/Monster Case
Beastie Boys v. Monster Energy, 1:12-cv-06065-PAE (SDNY filed 12/04/14) [Doc. 181].
After a jury awarded plaintiff Beastie Boys a verdict on their copyright and trademark claims, defendant Monster moved for a judgment as a matter of law under Federal Rule of Civil Procedure 50. As to the Copyright Act claim, Monster argued that the evidence was insufficient to support the finding of willful infringement on which the award of enhanced statutory damages was based. As to the Lanham Act claim, Monster argued that the evidence was insufficient to support either a finding of a false endorsement or that
Monster acted with intentional deception. Monster alternatively moved for a new trial under
Rule 59 or for a reduction in damages. The court denied Monster’s motions.
After a jury awarded plaintiff Beastie Boys a verdict on their copyright and trademark claims, defendant Monster moved for a judgment as a matter of law under Federal Rule of Civil Procedure 50. As to the Copyright Act claim, Monster argued that the evidence was insufficient to support the finding of willful infringement on which the award of enhanced statutory damages was based. As to the Lanham Act claim, Monster argued that the evidence was insufficient to support either a finding of a false endorsement or that
Monster acted with intentional deception. Monster alternatively moved for a new trial under
Rule 59 or for a reduction in damages. The court denied Monster’s motions.
Court My Reconsider Pre-1972 Sound Recording Decision In Turtles/Sirius Case
Flo & Eddie, Inc. v. Sirius XM Radio, 1:13-cv-05784-CM (SDNY filed 12/03/14) [Doc. 103].
As previously reported, a New York federal court recently found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. However, defendant Sirius XM, by new counsel, subsequently brought to the Court's attention a previously un-cited decades old 2nd Circuit decision, RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 87-88 (2d Cir. 1940), which held that no common law public performance right existed in sound recordings. "Whiteman plainly should have been addressed the first time around, and it must be dealt with now- it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case." Accordingly, the court entered a scheduling order for plaintiff to respond and discuss the case
As previously reported, a New York federal court recently found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. However, defendant Sirius XM, by new counsel, subsequently brought to the Court's attention a previously un-cited decades old 2nd Circuit decision, RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 87-88 (2d Cir. 1940), which held that no common law public performance right existed in sound recordings. "Whiteman plainly should have been addressed the first time around, and it must be dealt with now- it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case." Accordingly, the court entered a scheduling order for plaintiff to respond and discuss the case
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