Simmons v. Stanberry, No. 14-3106-cv (2nd Cir. Jan. 15, 2016).
Plaintiff, who alleged he was the exclusive licensee of a hip-hop beat later sold to rapper 50 Cent and successfully exploited by him, was too late in filing a lawsuit against the licensor and 50 Cent, says the Second Circuit in affirming dismissal of Plaintiff's copyright claims. Plaintiff was aware of the dispute of defendants' right to exploit and use the beat, and of the alleged infringement, but waited more than three years to file suit. Relying upon Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011), the Court held that notwithstanding the occurrence of allegedly infringing acts within three years of filing the action, the suit was nonetheless barred by the Copyright Act’s three-year statute of limitations, 17 U.S.C. § 507(b). Because Plaintiff's ownership claim was time barred, he could not revive the time-barred claim of ownership of a copyright interest by relying on the defendants’continued exploitation of the copyright within three years of his filing suit.
December 30, 2015
Chorus In Bieber & Usher Song Similar Enough To Chorus In Plaintiff's Song To State Copyright Claim
Copeland v. Bieber, No. 14-1427 (4th Cir. June 18, 2015)
The Fourt Circuit vacated the trial Court's dimissal of Plaintiff's claim against Justin Bieber and other defendants alleging that three recorded songs infringe upon plaintiff's copyright in an earlier song of the same name. Applying the "intrinsic similarity" test -- whether the songs at issue, assessed from the perspective of the intended audience (the general public), and taking into account their "total concept and feel" -- the appellate court found on de novo review, after listening to both songs start to finish, that plaintiff stated a claim. First, the court found that the three songs (a demo, album version, and remix) were "the same" (not just substantially similar) under the unscientific intrisic standard. Second, the court compared the three songs to plaintiff's song. The appellate court disagreed with the lower court's finding that there was a different overall "aesthetic appeal," finding too much of a focus on the mood and tone of the song rather than the similarities between the most imporant "element" of the songs, their choruses. The songs are different genres, but that is not enough (the Court gave the example of the Beatles' songbook being turned into an unlicensed reggae or heavy metal version). Further, the songs were in may respects dissimilar; numerically, the points of dissimilarity may have exceeded the points of similarity. "But what that analysis fails to account for...is the relative importances of these differences as compared to what the songs reasonably could be heard to have in common: their choruses....courts routinely permit a finding of substantial similarity where the works share some espeically significant sequence of notes or lyrics." Continguing, "we think it is clear that when it comes to popular music, a song's chorus may be the kind of key sequence that can give rise to intrinsic similarity, even when works differ in other respects." In other words, "the hook" is key. And whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar is a close enough question that it cannot be disposed of as a matter of law and should instead by decided by a jury.
[Author's note: missed this case earlier in the year].
The Fourt Circuit vacated the trial Court's dimissal of Plaintiff's claim against Justin Bieber and other defendants alleging that three recorded songs infringe upon plaintiff's copyright in an earlier song of the same name. Applying the "intrinsic similarity" test -- whether the songs at issue, assessed from the perspective of the intended audience (the general public), and taking into account their "total concept and feel" -- the appellate court found on de novo review, after listening to both songs start to finish, that plaintiff stated a claim. First, the court found that the three songs (a demo, album version, and remix) were "the same" (not just substantially similar) under the unscientific intrisic standard. Second, the court compared the three songs to plaintiff's song. The appellate court disagreed with the lower court's finding that there was a different overall "aesthetic appeal," finding too much of a focus on the mood and tone of the song rather than the similarities between the most imporant "element" of the songs, their choruses. The songs are different genres, but that is not enough (the Court gave the example of the Beatles' songbook being turned into an unlicensed reggae or heavy metal version). Further, the songs were in may respects dissimilar; numerically, the points of dissimilarity may have exceeded the points of similarity. "But what that analysis fails to account for...is the relative importances of these differences as compared to what the songs reasonably could be heard to have in common: their choruses....courts routinely permit a finding of substantial similarity where the works share some espeically significant sequence of notes or lyrics." Continguing, "we think it is clear that when it comes to popular music, a song's chorus may be the kind of key sequence that can give rise to intrinsic similarity, even when works differ in other respects." In other words, "the hook" is key. And whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar is a close enough question that it cannot be disposed of as a matter of law and should instead by decided by a jury.
[Author's note: missed this case earlier in the year].
Record Company Copyright Claims Against Amway Survive Dismissal
Alticor Inc. v. UMG Recordings, Inc., No. 6:14-cv-542 (M.D. Fla. Dec. 10, 2015).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
December 24, 2015
Sampling Case Against B.I.G. Dismissed
Hutson v. Notorious B.I.G., LLC et al., No. 14-cv-2307-RJS (SDNY Dec. 22, 2015) [Doc. 51].
On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die." Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014. In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.
The Court dismissed each claim. After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.
First, the Court found that Plaintiff lacked standing. Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities. [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.] Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.
Second, the Court found that it lacked jurisdiction over infringement occurring abroad.
Accordingly, the Court dismissed the claims. The Court even dismissed claims against a non-moving defendant.
Lastly, the Court denied Plaintiff's application for leave to amend, as futile.
On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die." Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014. In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.
The Court dismissed each claim. After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.
First, the Court found that Plaintiff lacked standing. Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities. [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.] Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.
Second, the Court found that it lacked jurisdiction over infringement occurring abroad.
Accordingly, the Court dismissed the claims. The Court even dismissed claims against a non-moving defendant.
Lastly, the Court denied Plaintiff's application for leave to amend, as futile.
December 15, 2015
In Tejano Case, Virtually Identical Opening Lines Of Song Does Not Mean Per Se Striking Similarity; 5th Cir.
Guzman v. Hacienda Records, No. 15-40927 (5th Cir. Dec. 14, 2015).
Affirming judgment after a bench trial, the Fifth Circuit held that the District Court did not err in finding lack of access to the song (despite radio play and live performances) and that the songs were not strikingly similar even though the first lines were virtually identical (because there was no evidence of uniqueness or complexity). Applying the "clearly erroneous standard," the 5th Circuit declined to second guess the District Court's findings.
Affirming judgment after a bench trial, the Fifth Circuit held that the District Court did not err in finding lack of access to the song (despite radio play and live performances) and that the songs were not strikingly similar even though the first lines were virtually identical (because there was no evidence of uniqueness or complexity). Applying the "clearly erroneous standard," the 5th Circuit declined to second guess the District Court's findings.
Default Judgment Entered In Grooveshark Case
Arista Records v. Tkach et al., No. 15-cv-3701 (SDNY Dec. 11, 2015).
The Court granted Plaintiff record companies a default judgment on their claims for copyright infringement, trademark counterfeiting, unfair competition, and cybersquatting claims based on the websites "grooveshark.io" and "grooveshark.pw". The plaintiffs had obtained a preliminary injunction, and the defendants did not respond to either the injunction or the complaint in any manner. The Court entered a judgment permanently enjoining Defendants' use of the "Grooveshark" marks and the infringing domains. Plaintiff UMG was also awarded $4 million for the trademark infringement, $400,000 for the cybersquatting, and statutory damages on the copyright claim of over $13 million. Plaintiffs were also granted their attorney's fees, to be calculated on a later submission.
The Court granted Plaintiff record companies a default judgment on their claims for copyright infringement, trademark counterfeiting, unfair competition, and cybersquatting claims based on the websites "grooveshark.io" and "grooveshark.pw". The plaintiffs had obtained a preliminary injunction, and the defendants did not respond to either the injunction or the complaint in any manner. The Court entered a judgment permanently enjoining Defendants' use of the "Grooveshark" marks and the infringing domains. Plaintiff UMG was also awarded $4 million for the trademark infringement, $400,000 for the cybersquatting, and statutory damages on the copyright claim of over $13 million. Plaintiffs were also granted their attorney's fees, to be calculated on a later submission.
December 10, 2015
Happy Birthday Case Settles Shortly After Plaintiffs Granted Leave To Expand Class Period Back To 1949
Good Morning To You Productions v. Warner/Chappel, No. 13-4460 (C.D. Cal. Dec. 7 & 8, 2015).
In the "Happy Birthday To You" case, the Court granted Plaintiffs' motion to amend the complaint to expand the proposed class period back to 1949. Shortly thereafter, an announcement was made that a settlement had been reached.
In the "Happy Birthday To You" case, the Court granted Plaintiffs' motion to amend the complaint to expand the proposed class period back to 1949. Shortly thereafter, an announcement was made that a settlement had been reached.
Subscribe to:
Posts (Atom)
Posts
