"Limewire and the four major labels have now reached an out-of-court settlement for $105 million, according to information confirmed by the RIAA"
May 13, 2011
May 2, 2011
Copyright Case Dismissed As Time Barred
Brand v. RMM, Universal Music Group, NYLJ 1202491912221, at *1 (SDNY, Decided April 18, 2011).
Plaintiff sued alleging that defendants infringed the copyright to his rap vocals by adding them to a song by recording artist Tito Nieves. The Court granted defendant's motion for summary judgment -- the claim was time-barred.
Plaintiff alleged that defendant infringed his copyright when it "used, sold and manufactured without his permission his rap vocals." Although styled as an infringement claim, the gravamen of Plaintiff's complaint is that he is the owner of the rap lyrics on Nieves' song.
The Court cited cases that a claim involving a dispute over copyright ownership accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised. A defendant's express assertion of adverse ownership or a plain and express repudiation of plaintiff's ownership such as registering the copyright in defendant's own name, distributing the work with copyright notice identifying defendant as the owner, or exploiting the work for years without paying royalties to plaintiff will trigger the accrual of the statute of limitations. If a plaintiff does not sue within three years from the date his copyright claim accrues, his complaint is time-barred. 17 U.S.C. §507(b).
In this case, the song was first released in 1991. The back of the CD cover listed defendant as the copyright owner. The song was released again in 1997 on another CD, which also listed defendant as the copyright owner on the back cover. Plaintiff never received royalties from either CD. The Court held that given this history, Plaintiff reasonably should have know of the injury upon which his claim was premised by 1991 or at the latest by 1997, thirteen years before he filed the complaint. Because Plaintiff's ownership claim was time-barred, his infringement claim also failed as a matter of law.
April 19, 2011
Plaintiff Cannot Swap Election Of Statutory Damages
Arista Records LLC v. Lime Group LLC, NYLJ 1202490027721, at *1 (SDNY, Decided April 11, 2011)
The Court finds that Defendants would be unduly prejudiced if Plaintiffs were permitted to amend their election of remedies under the Copyright Act, just one month before trial. Accordingly, Plaintiffs may not seek to recover actual damages for those sound recordings with respect to which they have already elected to recover statutory damages.
April 18, 2011
"Work" Defined For Statutory Damages Against Limewire
Arista Records LLC v. Lime Group LLC, 06 CV 5936 (KMW), NYLJ 1202489939713, at *1 (SDNY, Decided April 4, 2011)
The Court had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. The litigation is now in the damage phase, with a trial on damages scheduled. Plaintiffs identified approximately 11,205 sound recordings that had allegedly been infringed through the LimeWire system. Of those, approximately 9,715 are sound recordings as to which Plaintiffs have elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.
On March 10, 2011, the Court held that Plaintiffs are entitled to a single statutory damage award from Defendants for each "work" that was infringed by a direct infringer on the LimeWire system. The parties now seek a resolution of a threshold legal dispute regarding what constitutes a "work" as to which Plaintiffs can recover a statutory damage award.
The Court holds that both an album, and a sound recording that Plaintiffs issued as an individual track may constitute a "work" infringed. Accordingly, Plaintiffs are entitled to a statutory damage award for each sound recording that was infringed on the LimeWire system during the time period that Plaintiffs made that sound recording available as an individual track. However, for those sound recordings that Plaintiffs issued only as part of an album, Plaintiffs can recover only one statutory damage award for that album, not for each individual sound recording.
April 12, 2011
Claims Dismissed In Aretha Contract Suit
BLD Productions, LLC v. Viacom, Inc., NYLJ 1202489492977, at *1 (SDNY, Decided March 31, 2011) (Gardephe, J.)
Judge Gardephe dismissed the case against Viacom because it was not a party to the agreements, and plaintiff did not plead sufficient facts to pierce the corporate veil. Judge Gardephe also dismissed claims against Viacom's affiliate to the extent that plaintiff's breach of written contract claim were based on the affiliate's failure to provide master recordings to plaintiff. Plaintiff's claim that the agreement required the affiliate to secure a distributor was deemed time-barred by the New York statute of limitations. Judge Gardephe alsor dismissed plaintiff's claim for breach of an oral contract.
March 21, 2011
Copyright Royalty Board Final Rule
37 CFR Part 380: Digital Performance Right in Sound Recordings and Ephemeral Recordings;
Final Rule. The Copyright Royalty Judges announced their final determination of the rates and terms for two statutory licenses, permitting certain digital performances of sound recordings and the making of ephemeral recordings, for the period beginning January 1, 2011, and ending on December 31, 2015. (Effective Date March 9, 2011).
For example, a Commercial Webcaster will pay a royalty of: $0.0019 per performance for 2011; $0.0021 per performance for 2012; $0.0021 per performance for 2013; $0.0023 per performance for 2014; and $0.0023 per performance for 2015. Depending on the number of "tuning hours," a Noncommercial Webcaster will pay an annual per channel or per station performance royalty of $500 in 2011, 2012, 2013, 2014, and 2015; or, $0.0019 per performance for 2011; $0.0021 per performance for 2012; $0.0021 per performance for 2013; $0.0023 per performance for 2014; and $0.0023 per performance for 2015. (Section 380.3).
Who Owns A Grammy?
National Academy of Recording Arts & Sciences Inc. v. Gotta Have It! Collectibles Inc. dba Gotta Have and Roll.com, No. 11-103366 (Sup. Ct. NY. Co. filed 3/18/11) -- summons with notice for conversion of the Grammy Award Statuette awarded to Stevie Wonder for Songwriter of the Year (1973).
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