Flo & Eddie v. Sirius, No. 1:13-cv-05784-CM (SDNY filed 02/10/15) (Doc. 118).
The District Court certified for interlocutory appeal to the Second Circuit the question: "Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle or rights attendant to their copyright, the right to exclusive public performance of those sound recordings?" Having certified the question for interlocutory appeal, the District Court stayed all proceedings pending a decision by the Second Circuit.
February 11, 2015
February 9, 2015
Copyright Office Report On Copyright And The Music Marketplace
A Report Of The Register Of Copyrights, Copyright And The Music Marketplace (U.S. Copyright Office Feb. 2015). Link here.
February 5, 2015
Management Agreement With "Ginuwine" Abandoned
Reives v. Lumpkin, 08-CV-7797, NYLJ 1202716836270, at *1 (S.D.N.Y. decided Jan. 30, 2015).
Plaintiff's suit, claiming that the artist Ginuwine failed to make payments under a 1996 Management Agreement, was dismissed because the parties mutually abandoned the contract less than one year after after entering into the agreement. The Court found that New York law applied, under which a contract is unenforceable where the parties have abandoned or ignored it. "In such cases, a later cause of action for breach is typically barred, and will only lie where the agreement of the parties to terminate the contract expressly or impliedly reserved a later cause of action." Here, the Court found as a matter of fact that Ginuwine had satisfied his burden of proof and sufficiently demonstrated that the parties mutually agreed to abandon the Management Agreement in late summer of 1996. The Court further found that this abandonment precluded plaintiff's current action for breach as a matter of law.
February 3, 2015
Only Breach Of Contract Claim Survives in Ozzy Osbourne Guitarist Case
Rhoads v. Margolis, No. B249800 (Cal. App. Ct., 2d Dist. - Div. 7, Jan. 26, 2015).
Only a breach of contract claim survived in an action, brought by the family of a well-known rock guitarist who died in a 1982 plane crash, against Defendants based on the family's grant of the right to use personal information and memorabilia to make a documentary film about the deceased guitarist. When the documentary project faltered, defendants instead published a book about the guitarist. The family sued, alleging the book was based on materials they had provided for the exclusive purpose of making the documentary film. Defendants moved to dismiss the complaint.
On appeal, the Court found that the Anti-SLAPP Statute (section 425.16) applied because the principal thrust of every claim was premised on the allegation that the defendants, in researching, writing and publishing the book, used the family's proprietary material provided solely for the purpose of the documentary. Whether or not defendants violated the terms of the agreement, their conduct in writing and publishing the book qualified as a form of protected activity. With the exception of the breach of contract claim, the family failed to establish a probability of prevailing on its claims. The fraud claim failed because there was no allegation that the defendants intended to create the book at the time of the agreement. The misappropriation claim (based on the right of privacy) failed because the alleged acts did not implicate the personal privacy or publicity rights of the guitarist's family members. Additionally, the life and death of the guitarist was a matter of public interest. The unfair competition claim failed because plaintiffs had not articulated an actionable manner in which the public was likely to be deceived by the book or that consumers suffered substantial injury.
Only a breach of contract claim survived in an action, brought by the family of a well-known rock guitarist who died in a 1982 plane crash, against Defendants based on the family's grant of the right to use personal information and memorabilia to make a documentary film about the deceased guitarist. When the documentary project faltered, defendants instead published a book about the guitarist. The family sued, alleging the book was based on materials they had provided for the exclusive purpose of making the documentary film. Defendants moved to dismiss the complaint.
On appeal, the Court found that the Anti-SLAPP Statute (section 425.16) applied because the principal thrust of every claim was premised on the allegation that the defendants, in researching, writing and publishing the book, used the family's proprietary material provided solely for the purpose of the documentary. Whether or not defendants violated the terms of the agreement, their conduct in writing and publishing the book qualified as a form of protected activity. With the exception of the breach of contract claim, the family failed to establish a probability of prevailing on its claims. The fraud claim failed because there was no allegation that the defendants intended to create the book at the time of the agreement. The misappropriation claim (based on the right of privacy) failed because the alleged acts did not implicate the personal privacy or publicity rights of the guitarist's family members. Additionally, the life and death of the guitarist was a matter of public interest. The unfair competition claim failed because plaintiffs had not articulated an actionable manner in which the public was likely to be deceived by the book or that consumers suffered substantial injury.
January 23, 2015
Don Henley Suit Against Clothing Company Survives Dismissal
Henley v. Duluth Holdings, No. CV 14-7827 DSF (C.D. Cal. Jan. 21, 2015).
Don Henley's lawsuit concerning an advertisements for Henley-style shirts that urged customers to “Don a henley, take it easy,” survives defendant's motion to dismiss. The defendant apparel company had argued that the promotion was a joke. The Court found that Defendant has not established that its use of Plaintiff’s name – and the name of one of his band’s most famous songs – in its advertisement was sufficiently transformative on its face that a motion to dismiss should be granted.
Don Henley's lawsuit concerning an advertisements for Henley-style shirts that urged customers to “Don a henley, take it easy,” survives defendant's motion to dismiss. The defendant apparel company had argued that the promotion was a joke. The Court found that Defendant has not established that its use of Plaintiff’s name – and the name of one of his band’s most famous songs – in its advertisement was sufficiently transformative on its face that a motion to dismiss should be granted.
January 20, 2015
Jay-Z Must Produce Concert Revenue In 'Big Pimpin' Infringement Suit
Fahmy v. Jay-Z, No. 2:07-cv-05715-CAS, 2015 BL 8688 (C.D. Cal. Jan. 12, 2015).
Jay Z's motion for review of a Magistrate Judge's ruling directing him to produce documents concerning his concert revenues was denied. This action concerns Jay Z's alleged unauthorized sampling of "Khosara, Khosara" from the 1960 Egyptian film Fata Ahlami in his 2000 hit song "Big Pimpin'." A Magistrate Judge had ordered Jay-Z to produce the amount of revenue he earned from concerts where he performed "Big Pimpin' in order to allow the plaintiff to calculate his damages. Jay-Z moved for review of the magistrate's order under Federal Rule of Civil Procedure 72(a). The District Court denied the motion. The magistrate's order was not "clearly erroneous or contrary to law." The discovery of concert revenue "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the existence and amount of damages. Fed. R. Civ. P. 26(b)(1). Nor was there evidence that the burden of production was undue.
Jay Z's motion for review of a Magistrate Judge's ruling directing him to produce documents concerning his concert revenues was denied. This action concerns Jay Z's alleged unauthorized sampling of "Khosara, Khosara" from the 1960 Egyptian film Fata Ahlami in his 2000 hit song "Big Pimpin'." A Magistrate Judge had ordered Jay-Z to produce the amount of revenue he earned from concerts where he performed "Big Pimpin' in order to allow the plaintiff to calculate his damages. Jay-Z moved for review of the magistrate's order under Federal Rule of Civil Procedure 72(a). The District Court denied the motion. The magistrate's order was not "clearly erroneous or contrary to law." The discovery of concert revenue "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the existence and amount of damages. Fed. R. Civ. P. 26(b)(1). Nor was there evidence that the burden of production was undue.
January 16, 2015
Sirius To Be Liable To Turtles On Pre-1972 Sound Recording Claims
Flo & Eddie, Inc. v. Sirius XM Radio Inc., 1:13-cv-05784 (S.D.N.Y. filed Jan. 15, 2015) [Doc. 114].
The Court found that Sirius will be found liable to the Turtles' successor in interest for common law copyright infringement of pre-1972 sound recordings, but deferred entering judgment as to liability until the plaintiff decided whether to proceed individually or as a class action representative.
First, the Court rejected Sirius' argument that the plaintiff's had not yet established ownership of the recordings. The Court found that documentary evidence of the transfer of rights from the Turtles to the plaintiff was not required because an assignment of common law copyrights need not be in writing to be valid under New York law; that a court may infer that a transfer has taken place from subsequent conduct.
Second, the Court rejected Sirius' argument that it had an implied license. There was no evidence that the recordings were created at Sirius' request (indeed, Sirius did not even exist when the recordings were made), nor any evidence that plaintiff "handed over" the recordings to Sirius (let alone with intent for Sirius to copy and distribute the recordings). Mere acquiescence was insufficient.
Third, the Court rejected Sirius' waiver and estoppel defenses. The Court found that plaintiff's failure to pursue infringement actions for many years while the recordings were played on the air did not constitute a waiver. Inaction was insufficient. The estoppel defense failed because there was no proof that Plaintiff made any false representations to Sirius or concealed any material fact with intent to deceive. Even if Sirius relied on general industry practice as to pre-1972 recordings, and the lack of any lawsuits over the years challenging that practice, the Court found that was distinguishable from relying on affirmative conduct by the plaintiff.
Fourth, the Court found that there is a three year statute of limitations under New York law, and that while plaintiff's claim was not time-barred, it could only recover damages for infringement going back three years. The Court distinguished the case from those in which ownership of the copyright is in dispute between the parties; here, infringement is the primary issue (there is no claim by Sirius that it owns the copyrights).
Lastly, the Court found that it would defer on ruling on the merits until the issue of class certification was decided. The Court directed plaintiff to notify it if it intends to proceed individually or as a class action representative.
The Court found that Sirius will be found liable to the Turtles' successor in interest for common law copyright infringement of pre-1972 sound recordings, but deferred entering judgment as to liability until the plaintiff decided whether to proceed individually or as a class action representative.
First, the Court rejected Sirius' argument that the plaintiff's had not yet established ownership of the recordings. The Court found that documentary evidence of the transfer of rights from the Turtles to the plaintiff was not required because an assignment of common law copyrights need not be in writing to be valid under New York law; that a court may infer that a transfer has taken place from subsequent conduct.
Second, the Court rejected Sirius' argument that it had an implied license. There was no evidence that the recordings were created at Sirius' request (indeed, Sirius did not even exist when the recordings were made), nor any evidence that plaintiff "handed over" the recordings to Sirius (let alone with intent for Sirius to copy and distribute the recordings). Mere acquiescence was insufficient.
Third, the Court rejected Sirius' waiver and estoppel defenses. The Court found that plaintiff's failure to pursue infringement actions for many years while the recordings were played on the air did not constitute a waiver. Inaction was insufficient. The estoppel defense failed because there was no proof that Plaintiff made any false representations to Sirius or concealed any material fact with intent to deceive. Even if Sirius relied on general industry practice as to pre-1972 recordings, and the lack of any lawsuits over the years challenging that practice, the Court found that was distinguishable from relying on affirmative conduct by the plaintiff.
Fourth, the Court found that there is a three year statute of limitations under New York law, and that while plaintiff's claim was not time-barred, it could only recover damages for infringement going back three years. The Court distinguished the case from those in which ownership of the copyright is in dispute between the parties; here, infringement is the primary issue (there is no claim by Sirius that it owns the copyrights).
Lastly, the Court found that it would defer on ruling on the merits until the issue of class certification was decided. The Court directed plaintiff to notify it if it intends to proceed individually or as a class action representative.
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