GaGa Over Tour Merchandise

Lady GaGa's merchandising company brings "Doe" trademark suit asking court to authorize the US Marshal to seize and impound counterfeit merchandise.

The Bravado International Group Merchandising Services Inc. v. John Does 1-100, 10-cv-04943 (S.D.N.Y. filed June 25, 2010)

Ringtone Royalty Rate Approved By DC Circuit

RIAA v. Librarian of Congress, No. 09-1075 (D.C. Cir. decided June 22, 2010).

Rebuking a challenge by the Recording Industry Association of America, the DC District Court upheld a decision by the Copyright Royalty Board setting the ringtone "penny-rate" royalty rate at $0.24. The court also upheld a new late fee, 1.5%, for overdue royalty payments.

The Board's decision was "reasonable and reasonably explained."

Attorneys' Fees Denied In Recording Software Case

Waves Audio Ltd v. Reckless Music LLC, 09 Civ 2282, 6/15/10 NYLJ "Decision of Interest" (S.D.N.Y. June 9, 2010).

This is a copyright infringement action concerning audio software designed for use in recording studios. Following a jury trial, the defendant, Reckless Music, LLC, doing business as Skyline Recording Studio ("Skyline"), was found liable for infringing two versions of copyrighted software created by the plaintiffs, Waves Audio, Ltd., and Waves, Inc. (collectively "Waves"). Waves moved for an award of attorneys' fees and costs pursuant to the Copyright Act of 1976, 17 U.S.C. §505.

The motion was denied because defenses asserted were not "unreasonable." The remaining factors also favored Skyline or are neutral. There was no suggestion that Skyline's conduct either prior to or in the course of litigation was frivolous or improperly motivated. The goals of compensation and deterrence were fully satisfied by the statutory damage award assessed by the jury. And, finally, the financial strength of the parties counseled against an award of fees. Skyline appeared to be a relatively modest one-man operation, while Waves seemed fully capable of bearing its own costs.

2d Cir Rules On Copyright Statutory Damages

Bryant v. Media Right Productions Inc., 09-2600-cv, 5/5/10 NYLJ "Decision of Interest" (2d Cir. decided April 27, 2010).

Affirming lower court's finding that musical albums were compilations, and therefore each infringer was liable for only one award of statutory damages per album, rather than one award per song.

"...[I]nfringement of an album should result in only one statutory damage award. The fact that each song may have received a separate copyright is irrelevant to this analysis." The Court expressly declined to adopt an"independent economic value test" (adopted by other circuits) that would have allowed a statutory damage award for each song on the album because the Copyright Act specifically states that all parts of a compilation must be treated as one work for the purpose of calculating statutory damages. "We cannot disregard the statutory language simply because digital music has made it easier for infringers to make parts of an album available separately." See also fn. 6, collecting local district court cases that have considered whether a compilation is subject to only one statutory damage award (and noting that those courts reached the same conclusion).

The Court then went on to review the District Court's decision on intent (it had found that the conduct was innocent, not willful infringement), its calculation of statutory damages ($2,400), and its decision not to award attorneys' fees.

Leave To Amend Pleading In Patent Case

Touchtunes Music Corp. v. Rowe Int'l Corp., 07 Civ 11450, 5/18/10 NYLJ "Decision of Interest" (S.D.N.Y. decided May 11, 2010).

Defendant moved pursuant to Rule 15 of the Fed. R. Civ. P. for leave to file an amended answer containing an additional counterclaim of patent infringement. Motion granted.

The patent at issue relates generally to source code concerning how advertisements are assembled and executed on a jukebox or other electronic device.

Sony Loses Employment Suit Against EMI and Top Executive

Sony Music Entertainment, Inc. v. Werre, No. 601441/09 (Sup. Ct., N.Y. Co. Mar. 19, 2010)

Sony sued a top EMI executive for alleged breach of contract, and EMI for tortious interference with that contract. The Court granted Defendants' motion to dismiss for failure to state a claim. (CPLR 3211(a)(7)). The Court found that the letter agreement at issue was not a binding, enforceable contract because a contingency, namely the executive's availability for employment on April 1, 2010, did not occur. Nor did the "prevention doctrine" apply because there was not binding contract in effect that contained the condition precedent in question; the contract was not binding on the parties until the condition precedent occurred such that the prevention doctrine did not apply. Similarly, since there was no valid contract, the tortious interference claim against EMI failed. Lastly, the fraud and breach of covenant of good faith and fair dealing claims against the executive were dismissed as duplicative of the (failed) breach of contract claim.

Sony v Werre (NYS)

My Boyfriend's Back

Sirico v. F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (1st Dep't Mar. 4, 2010).

Singers of the 1960s hit "My Boyfriend's Back" sues producer of the recording concerning royalties. On appeal of denial of motion for renewal, the Appellate Division addresses plaintiff's New York breach of contract, breach of implied contract, unjust enrichment, accounting, rescission, and right of privacy statutory claims. Specifically at issue is whether summary judgment was appropriate based on limited discovery and problematic affidavits. The court also addresses laches, statute of limitations, limitation on equitable claims.

Sirico v F