No Proof of Famousness - Dilution Sum. Judgment Denied

Irby v. Thompson, No. 05 Civ. 9935, NYLJ 6/5/09 "Decision of Interest" (S.D.N.Y. May 29, 2009) (Swain, J.)

Action arists out of the alleged use and dilution of the mark "Hi-Five" by defendants via the production, marketing, and distribution of recordings under the "Hi-Five" name without the consent of former "Hi-Five" bank members (plaintiffs). Plaintiff's second motion for summary judgment denied.

Dilution, 15 U.S.C. 1125(c). Dispute as to whether the mark "Hi-Five" is famous. Plaintiffs provided no evidentiary proffers to establish the mark's fame other than information contained in documents purporting to be pritntouts from the website of the RIAA, for which plaintiffs failed to proffer the necessary foundational support and authentication pursuant to Fed. R. Evid., Art. VIII. Therefore, plaintiffs failed to carry their burden of demonstrating that the "Hi-Five" mark is famous as a matter of law. (The Court expressly decided, fn. 6, that the purported RIAA records were not subject to judicial notice pursuantt o Rule 201 of the Fed. R. of Evid.)

Failure to Prosecute, Fed. R. Civ. P. 41. The Court directed plaintiffs to "show cause" as to why Plaintiffs' claims against all defendants other than a media marketing and distribution business (that allegedly marketed and distributed the recordings in question) should not be dismissed for failure to prosecute.

Summary Judgment. In denying Plaintiffs' second motion for summary judgment, the court held that "No further dispositive pre-trial motions will be entertained."

Reconsideration Denied On Claim of Lost Written Assignment

Tolliver v. McCants, No. 05 Civ. 10840, NYLJ 6/03/09 "Decision of Interest" (S.D.N.Y. May 26, 2009)

The Court had previously granted plaintiff judgment on defendant's copyright infringement. Granting defendant reconsideration in part, the Court reinstated eight affirmative defenses. However, the Court denied reconsdiertion on defendant's claim of a lost written assignment.

Defendant could not rely on plaintiff's prior deposition testimony to create a genuine factual issue as to the written assignment's existence. Also, the Court noted that its earlier ruling found that defendant had admitted that the only written agreement with plaintiff was a recording contract concerning artist's royalties. The court discounted allegedly "new" evidence, and determined that defendant pointed to nothing undermining the Court's prior conclusion that no genuine factual issue existed regarding defendant's claim of a lost written assignment.

Transfer and Contempt in Major Label v. Independent Distributor Case

Atlantic Recording Corp. v. BCD Music Group Inc., No. 08 Civ. 5201, NYLJ 5/14/2009 "Decision of Interest" (S.D.N.Y. May 7, 2009)

Defendant's motion to transfer denied. (Court goes through standard for 28 U.S.C. 1404(a))

Plaintiff's motion for contempt granted (for violating a preliminary injunction order entered on consent).

ASCAP Blanket Fees for YouTube

U.S. v. ASCAP, NYLJ 5/21/2009 "Decision of Interest" (S.D.N.Y. May 13, 2009) (Connor, J.)

Proceeding was before the Court for the setting of interim fees for a blanket license for the public performance of any of the more than two million musical compositions in the repertory of the American Society of Composers, Authors and Publishers ("ASCAP") on the streaming video service provided on the Internet by YouTube, LLC f/k/a YouTube, Inc. ("YouTube").

The Court saw no reason why the basic formula that ASCAP proposed and the Court adopted in United States v. ASCAP in re AOL, RealNetworks and Yahoo! Inc., 562 F. Supp. 2d 413 (S.D.N.Y. 2008) ("In re AOL, et al.") was not equally appropriate in the present context.

It is therefore ordered (1) Within thirty days YouTube shall pay to ASCAP the sum of $1,610,000 for interim fees accrued through March 31, 2009; and (2) Within one week after the end of each calendar month after March 2009 until the determination of final fees in this proceeding, YouTube shall pay to ASCAP the sum of $70,000 for interim fees accruing during that month. These interim fees are subject to retroactive adjustment when final fees are determined.

Don Henley Complaint Against Politician

Don Henley v. Devore, No. 09 Cv. 0481-JVS (C.D. Cal. complaint filed 4/17/2009)


"This action arises out of the wholesale appropriation and exploitation by Defendants DeVore and Hart of the well-known and valuable song "The Boys of Summer," written by Plaintiffs Don Henley and Mike CampbelL. Defendants' infringing conduct is unauthorized, brazenly wilful, and pursued solely in order to promote DeVore and Hart's personal and professional agenda. Openly flouting Henley and Campbell's intellectual property rights, DeVore and Hart copied almost
all of Henley and Campbell's copyrighted musical composition note for note and, altering the lyrics to suit their own purpose and using a recorded performance of the work to mimic the original Henley recording, produced and distributed a video featuring Henley and Campbell's song (the "Boys of Summer Video"). DeVore and Hart's avowed aim in doingthis was to use the Boys of Summer Video to promote DeVore's campaign for th~ Republican nomination for the U.S. Senate in 2010.

"My Humps" Licensing Suit

Tolliver v. McCants, 05 Civ. 10840, 4/7/09 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Mar. 25, 2009)

In 1982, plaintiff collaborated with defendant to produce a music album that included a recording of a musical composition entitled, "I Need a Freak." In 2005, defendant licensed the composition to the popular music group, The Black Eyed Peas, for use in their hit single, "My Humps." At issue in this case is whether the grant of the license by defendant infringed upon plaintiff's copyright to the composition. Both parties cross-moved for summary judgment. Plaintiff's motion was granted; defendant's denied.

Issues:

Statute of Frauds: No writing assigning to defendant right to license work for derivative works, therefore no valid assignment so that the license for "My Humps" violated plaintiff's copyright.

Statute of Limitations: "conundrum" between the limitations period for an ownership claim and an infringement claim

Adding affirmative defense (laches) on summary judgment motion, 2.5 years after litigation commenced.

Mosh Dancer Assumes Risk

"On the undisputed facts, plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it." Therefore, complaint against rock-club dismissed.

Schoneboom v. B.B. King Blues Club, No. 115632/06, 3/11/09 N.Y.L.J. "Decision of Interest" (Sup.Ct., N.Y. Co. decided Feb. 23, 2009)