Moman v. Sony BMG Entertainment, No. 604392/04, 2/5/09 N.Y.L.J. Decision of Interest (Sup.Ct., N.Y. Co. decided Jan. 20, 2009).
The court granted Plaintiff record producer leave to amend his complaint to add an additional cause of action for breach of a third-party beneficiary contract between defendant Sony and Willie Nelson in 1983. Producer argued the 1983 contract surfaced during settlement discussions, and stated that he would receive $225,000 advance royalty payment on his services for CBS Records for co-producing a single Nelson album. Sony argued the 1983 contract was merely a Letter of Direction (LOD) and was not an "open mutual account." It also argued the six year statute of limitations period expired on the claim. The court rejected Sony's argument that the breadth of a 1990 judgment audit of the CBS books and records would have also encompassed royalties from the 1983 LOD. The court noted that Producer claimed he was unaware of the 1983 LOD until 2007 when his current attorney and manager received a copy from Sony.
February 5, 2009
February 4, 2009
Cancelled Festival - Artist Damages?
News that this year’s Langerado Festival in Miami, Florida, was canceled due to "sluggish ticket sales" got OTCS thinking...when an artist agrees to perform at a festival, and the festival is thereafter cancelled, is the artist entitled to any damages? What are the terms of the performance agreement? Does it include a liquidated damages clause?
Last year OTCS contemplated that the over-saturation of festivals might lead to the inclusion of "exclusivity" clauses in festival agreements; in this year's economy, might an artist now demand a liquidated damages clause?
Last year OTCS contemplated that the over-saturation of festivals might lead to the inclusion of "exclusivity" clauses in festival agreements; in this year's economy, might an artist now demand a liquidated damages clause?
February 3, 2009
Copyright Suit Over Ringtones
WB Music Corp. v. Infospace, Inc., No. 09-cv-0682-ODW (C.D. Cal. complaint filed Jan. 28, 2009).
As alleged in the Complaint (paragraphs 14 and 17):
Defendants...are related companies that, collectively, are (or at all relevant times were) in the business of creating, selling, and distributing cell phone ringtones, including ringtones embodying Plaintiffs' copyrighted musical compositions. Defendants have represented themselves as agents of one another in their dealings with Plaintiffs...
Defendants have unlawfully, and without authority from Plaintiffs, reproduced, distributed, prepared, and sold cell phone ringtones embodying the Musical Compositions.
As alleged in the Complaint (paragraphs 14 and 17):
Defendants...are related companies that, collectively, are (or at all relevant times were) in the business of creating, selling, and distributing cell phone ringtones, including ringtones embodying Plaintiffs' copyrighted musical compositions. Defendants have represented themselves as agents of one another in their dealings with Plaintiffs...
Defendants have unlawfully, and without authority from Plaintiffs, reproduced, distributed, prepared, and sold cell phone ringtones embodying the Musical Compositions.
February 2, 2009
Foxy Brown - Gotta Serve Somebody
Raymond v. Marchand [p/k/a Foxy Brown], No. 13413/08, 2/2/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., Kings Co. decided Jan. 23, 2009) - ordering a traverse hearing on the issue of service of process.
Hip Hop artist Foxy Brown moved to vacate a default judgment entered against her. The complaint alleged defendant assaulted plaintiff and criminal charges were filed against defendant. Upon appearing in Supreme Court on the criminal charges, plaintiff alleged Foxy Brown was served when she was leaving the courthouse. Foxy Brown denied the allegation, arguing she was never served with legal papers. The court noted the process server's affidavit did not address the manner of service, and that the facts surrounding the service of process as presented by both parties was "so unclear as to raise a question" of the validity of the service. Also, though courts look unfavorably on service of civil process in any part of the courthouse building, it was not unlawful to serve a defendant in a courthouse unless it was done in a manner that caused a disturbance to court proceeding. Where service was allegedly made outside the courthouse, there was no such claim, but ordered a traverse hearing on the issue of service of process.
Hip Hop artist Foxy Brown moved to vacate a default judgment entered against her. The complaint alleged defendant assaulted plaintiff and criminal charges were filed against defendant. Upon appearing in Supreme Court on the criminal charges, plaintiff alleged Foxy Brown was served when she was leaving the courthouse. Foxy Brown denied the allegation, arguing she was never served with legal papers. The court noted the process server's affidavit did not address the manner of service, and that the facts surrounding the service of process as presented by both parties was "so unclear as to raise a question" of the validity of the service. Also, though courts look unfavorably on service of civil process in any part of the courthouse building, it was not unlawful to serve a defendant in a courthouse unless it was done in a manner that caused a disturbance to court proceeding. Where service was allegedly made outside the courthouse, there was no such claim, but ordered a traverse hearing on the issue of service of process.
January 30, 2009
Quantum Meruit AND Contract Claims Survive in Action Against Label
Gromley v. Atlantic Recording Corp., No. 101041/08, 1/30/09 N.Y.L.J. Decision of Interest (Sup.Ct., N.Y. Co. Jan. 2, 2009)
Defendant record company ("Atlantic") moved to dismiss plaintiff's claims for quantum meruit. Plaintiff alleged defendant owed her the reasonable value of her services regarding the introduction of artists to defendant and overseeing production of records. Atlantic argued for dismissal arguing plaintiff's employment contract, which expired, covered the subject of royalties and contained a merger clause, and precluded the payment of royalties after expiration of the contract.
The court stated it was reasonable to infer the parties did not intend for plaintiff to continue working without expectation of payment even after expiration of the contract. Thus, the claims for unjust enrichment and quantum meruit stated a claim under quasi contract for payment for the period of time after expiration of the employment contract. However, plaintiff's claim seeking compensation under an implied contract for royalties for international sales for the period the contract existed was not actionable.
Defendant record company ("Atlantic") moved to dismiss plaintiff's claims for quantum meruit. Plaintiff alleged defendant owed her the reasonable value of her services regarding the introduction of artists to defendant and overseeing production of records. Atlantic argued for dismissal arguing plaintiff's employment contract, which expired, covered the subject of royalties and contained a merger clause, and precluded the payment of royalties after expiration of the contract.
The court stated it was reasonable to infer the parties did not intend for plaintiff to continue working without expectation of payment even after expiration of the contract. Thus, the claims for unjust enrichment and quantum meruit stated a claim under quasi contract for payment for the period of time after expiration of the employment contract. However, plaintiff's claim seeking compensation under an implied contract for royalties for international sales for the period the contract existed was not actionable.
Festival Cross-MOJO
"AEG Live is helping brands tune up for its compilation of summer music festivals. The producers of the New Orleans Jazz and Heritage Festival, the Coachella Valley Music and Arts Festival, and Stagecoach Country Music Festival have decided to bundle those and nine more of its giant music events to allow marketers to buy across festivals."
How will these festivals retain their geo-cultural uniqueness?
[Beth Snyder Bulik, "Concert Producer Gives Brands Chance to Reach More Bands AEG Live Bundles Together Major Music Festivals So Marketers Can Save Money, Target Fans", 1/29/09 AdAge.com]
How will these festivals retain their geo-cultural uniqueness?
[Beth Snyder Bulik, "Concert Producer Gives Brands Chance to Reach More Bands AEG Live Bundles Together Major Music Festivals So Marketers Can Save Money, Target Fans", 1/29/09 AdAge.com]
January 29, 2009
Sean Combs Sued Over Glass Design of Cologne Bottle
Patti v. Combs, No. 3:09-cv-30017-MAP (D. Mass. filed Jan. 28, 2009).
Plaintiff claims infringement of his registered copyrights for glass sculptures by defendants' exploitation of bottle used for Sean Jean brand cologne.
Trade dress infringement and unfair competition also alleged.
Plaintiff claims infringement of his registered copyrights for glass sculptures by defendants' exploitation of bottle used for Sean Jean brand cologne.
Trade dress infringement and unfair competition also alleged.
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