See Ryan Davis, "Copyright Termination For '70s Hits Won't Spark Lawsuit Fever" (Law360, New York; Nov. 26, 2012). (Link to article; registration required).
Article summary (first paragraph): "Musicians who recorded hit songs in the late 1970s will gain the right to
reclaim ownership of their work starting in January under a 1978 copyright law
provision, and while record labels are expected to fight to retain control of
lucrative music, 2013 is unlikely to bring a flood of litigation, attorneys said."
The article concerns the reclamation of rights by authors that were licensed or transferred after 1978, pursuant to section 203 of the Copyright Act. Generally, termination rights may be effected after 35 years from the grant. Id. Thirty-five years from 1978 is...2013!
Lawyers interviewed for the article predicted that there will be few actually litigated cases, and instead termination notices will serve as a jumping-off point for contract re-negotiations between artists and record labels.
November 27, 2012
November 16, 2012
Black Keys Settle Commercial Claims Against Pizza Hut and Home Depot
Auerbach v. The Home Depot, 12-cv-05386 (C.D. Cal. doc. 23 filed 11/13/2012); and Auerbach v. Pizza Hut, Inc., 12-cv-05385 (C.D. Cal. doc. 27 filed 11/9/12).
The Black Keys have settled their lawsuit against the Home Depot and Pizza Hut for the alleged unauthorized use of Black Keys songs in commercials.
The Black Keys have settled their lawsuit against the Home Depot and Pizza Hut for the alleged unauthorized use of Black Keys songs in commercials.
October 12, 2012
$6.6 Million Copyright Infringement Judgment In Lyrics Website Case
Peermusic III v. Live Universe, Inc., No. 2:09-cv-06160 (C.D. Cal. filed Oct. 9, 2012) [Doc. 215].
Defendants operated song lyric websites that infringed copyrights held by a group of music publishers. The company was run by the co-founder of MySpace Inc. The Court granted a default judgment to plaintiffs and awarded statutory damages in the sum of $12,500 per each of the 528 songs shown to be infringed for a total of $6,600,000. Plaintiffs were also awarded their attorneys fees.
Kudos to my former colleagues Paul Fakler and Ross Charap, who represented Plaintiffs.
Defendants operated song lyric websites that infringed copyrights held by a group of music publishers. The company was run by the co-founder of MySpace Inc. The Court granted a default judgment to plaintiffs and awarded statutory damages in the sum of $12,500 per each of the 528 songs shown to be infringed for a total of $6,600,000. Plaintiffs were also awarded their attorneys fees.
Kudos to my former colleagues Paul Fakler and Ross Charap, who represented Plaintiffs.
September 21, 2012
Apple's Music Icon Can Not Be Trademarked
In Re Apple Inc., Serial No. 85019762 (TTAB mailed Sep. 18, 2012).
Apple sought to register a trademark for its music icon. Registration was denied based on a pre-existing registration. The refusal to register was affirmed by the TTAB.
"In comparing the marks within the above-noted legal parameters, the marks at issue are similar because they comprise a double musical note in an orange rectangle. The designs are not identical because applicant’s rectangle has rounded corners, the shades of orange are different, and applicant’s double musical note is ascending while note in the registered mark is descending. Nevertheless, we find that the basic similarities in the marks outweigh any specific differences that might be apparent upon a side-by-side comparison. The differences in the details of the respective depictions of the double musical notes and their background designs do not suffice to distinguish the marks in terms of their overall commercial impressions. Regardless of the differences which might be apparent in a side-by-side comparison, both marks depict a double musical note in an orange rectangle. Thus, when the marks are viewed at different times, the recollection of the first viewed mark will be a general impression that is devoid of the details that applicant argues sets its mark apart from the registered mark. What will be remembered is a musical note in an orange rectangle. The fact that the marks are not identical is less significant to our analysis than the basic similarities arising from the fact that both marks include the depiction of a double musical note in an orange rectangle."
Apple sought to register a trademark for its music icon. Registration was denied based on a pre-existing registration. The refusal to register was affirmed by the TTAB.
"In comparing the marks within the above-noted legal parameters, the marks at issue are similar because they comprise a double musical note in an orange rectangle. The designs are not identical because applicant’s rectangle has rounded corners, the shades of orange are different, and applicant’s double musical note is ascending while note in the registered mark is descending. Nevertheless, we find that the basic similarities in the marks outweigh any specific differences that might be apparent upon a side-by-side comparison. The differences in the details of the respective depictions of the double musical notes and their background designs do not suffice to distinguish the marks in terms of their overall commercial impressions. Regardless of the differences which might be apparent in a side-by-side comparison, both marks depict a double musical note in an orange rectangle. Thus, when the marks are viewed at different times, the recollection of the first viewed mark will be a general impression that is devoid of the details that applicant argues sets its mark apart from the registered mark. What will be remembered is a musical note in an orange rectangle. The fact that the marks are not identical is less significant to our analysis than the basic similarities arising from the fact that both marks include the depiction of a double musical note in an orange rectangle."
September 13, 2012
Covenant Not To Sue Dooms Velvet Underground Copyright Claim Against Warhol
The Velvet Underground v. The Andy Warhol Foundation, No. 1:12-cv-00201-AJN (S.D.N.Y. filed Sept. 7, 2012) [Doc. 30].
The Velvet Underground sought a declaration that the Andy Warhol Foundation has no copyright in the iconic banana image used by the Velvet Underground and designed by Warhol. The Warhol Foundation had covenanted not to sue the Velvet Underground for copyright infringement for the Velvet Underground's use of the banana image. The Court held that the covenant not to sue eliminated any justiciable controversy between the parties over copyright in the design, and thus dismissed the Velvet Underground's declaratory judgment claim. (The Velvet Underground's trademark claims were not the subject of the motion and were not dismissed).
In the decision, Judge Nathan does a thorough analysis of the Declaratory Judgment Act (28 U.S.C. 2201 et seq.), and specifically with respect to intellectual property cases. Notably, the covenant not to sue was entered after the litigation had commenced, so the issue had been mooted by a subsequent development (the covenant). The Court found that: "[I]n intellectual property cases, when a declaratory judgment plaintiff seeks a declaration that an asserted right is invalid or otherwise unenforceable and the declaratory judgment defendant provides the plaintiff with a covenant not to sue for infringement of that right, that covenant can extinguish any current or future case or controversy between the parties, and divests the district court of subject matter jurisdiction." (Doc. 30 at pp. 6-7).
The Court held that the covenant at issue was broad, and then determined that there no longer was a "live, actual controversy." First, the Court found that there was no real and substantial prospect that the Warhol Foundation's alleged copyright would impact the Velvet Underground's legal interests, and the Foundation's mere assertion of the right did not support a declaratory judgment claim. The Covenant no only held litigation in abeyance, but it also vitiated any coercive force that the Foundation's alleged copyright might have had against the Velvet Underground. Second, the Court held that the Declaratory Judgment Act could not be sued to test the validity of an affirmative defense that a plaintiff anticipates the defendant will assert, to wit: the Foundation claiming that its copyright shields it from trademark liability. Third, the alleged adverse economic impact of the alleged copyright was not sufficiently immediate and real to warrant the issuance of a declaratory judgment. "Without the 'how,' [the Velvet Underground] cannot show the controversy is 'real'; without the 'when', it cannot show the controversy is 'immediate'." (Doc. 30, p. 14). Fourth the right to an accounting under the Declaratory Judgment Act is not an independent cause of action, but is merely relief that may be granted.
The Velvet Underground sought a declaration that the Andy Warhol Foundation has no copyright in the iconic banana image used by the Velvet Underground and designed by Warhol. The Warhol Foundation had covenanted not to sue the Velvet Underground for copyright infringement for the Velvet Underground's use of the banana image. The Court held that the covenant not to sue eliminated any justiciable controversy between the parties over copyright in the design, and thus dismissed the Velvet Underground's declaratory judgment claim. (The Velvet Underground's trademark claims were not the subject of the motion and were not dismissed).
In the decision, Judge Nathan does a thorough analysis of the Declaratory Judgment Act (28 U.S.C. 2201 et seq.), and specifically with respect to intellectual property cases. Notably, the covenant not to sue was entered after the litigation had commenced, so the issue had been mooted by a subsequent development (the covenant). The Court found that: "[I]n intellectual property cases, when a declaratory judgment plaintiff seeks a declaration that an asserted right is invalid or otherwise unenforceable and the declaratory judgment defendant provides the plaintiff with a covenant not to sue for infringement of that right, that covenant can extinguish any current or future case or controversy between the parties, and divests the district court of subject matter jurisdiction." (Doc. 30 at pp. 6-7).
The Court held that the covenant at issue was broad, and then determined that there no longer was a "live, actual controversy." First, the Court found that there was no real and substantial prospect that the Warhol Foundation's alleged copyright would impact the Velvet Underground's legal interests, and the Foundation's mere assertion of the right did not support a declaratory judgment claim. The Covenant no only held litigation in abeyance, but it also vitiated any coercive force that the Foundation's alleged copyright might have had against the Velvet Underground. Second, the Court held that the Declaratory Judgment Act could not be sued to test the validity of an affirmative defense that a plaintiff anticipates the defendant will assert, to wit: the Foundation claiming that its copyright shields it from trademark liability. Third, the alleged adverse economic impact of the alleged copyright was not sufficiently immediate and real to warrant the issuance of a declaratory judgment. "Without the 'how,' [the Velvet Underground] cannot show the controversy is 'real'; without the 'when', it cannot show the controversy is 'immediate'." (Doc. 30, p. 14). Fourth the right to an accounting under the Declaratory Judgment Act is not an independent cause of action, but is merely relief that may be granted.
August 22, 2012
Distribution, Not Only Copying, Sufficient For Copyright Claim
Marshall v. Huffman, No. 10-1665 (N.D. Cal. filed Aug. 20, 2010) [Doc. 133].
This action concerns a song recorded by Mariah Carey, and claims against Carey and a music executive for unauthorized exploitation of Plaintiff's song. Defendant moved to dismiss, arguing that plaintiff failed adequately to allege his copyright claim, because plaintiff fails to allege that defendant “copied” plaintiff’s work, and because the allegation that Huffman “distributed” plaintiff’s copyrighted work without permission is insufficient to support the copyright infringement claim since it is devoid of supporting facts. Defendant's was "not well taken." The Court found that a claim for copyright infringement can be based on allegations of unauthorized distribution of a copyrighted work. See 17 U.S.C. § 106(3) (exclusive rights protected by Copyright Act include right to distribution of copyrighted work). The complaint adequately explained the facts supporting the improper distribution allegations: it alleged that defendant distributed without permission plaintiff’s song “Are You the One,” in violation of the Copyright Act. Motion to dismiss DENIED.
This action concerns a song recorded by Mariah Carey, and claims against Carey and a music executive for unauthorized exploitation of Plaintiff's song. Defendant moved to dismiss, arguing that plaintiff failed adequately to allege his copyright claim, because plaintiff fails to allege that defendant “copied” plaintiff’s work, and because the allegation that Huffman “distributed” plaintiff’s copyrighted work without permission is insufficient to support the copyright infringement claim since it is devoid of supporting facts. Defendant's was "not well taken." The Court found that a claim for copyright infringement can be based on allegations of unauthorized distribution of a copyrighted work. See 17 U.S.C. § 106(3) (exclusive rights protected by Copyright Act include right to distribution of copyrighted work). The complaint adequately explained the facts supporting the improper distribution allegations: it alleged that defendant distributed without permission plaintiff’s song “Are You the One,” in violation of the Copyright Act. Motion to dismiss DENIED.
August 21, 2012
Kanye Didn't Infringe, 7th Circuit
Peters v. West, No. 11-1708 (7th Cir. decided Aug. 20, 2012).
Plaintiff sued Kanye West, alleging that West's song "Stronger" infringed Plaintiff's song, also entitled "Stronger". The hook to both songs draws from the aphorism coined by Friedrich Nietzsche: "what does not kill me, makes me stronger." The District Court granted West's motion to dismiss, and the 7th Circuit affirms, agreeing that the two songs are not similar enough to support a finding of copyright infringement.
The court structured its analysis as (1) whether West had an actual opportunity to copy the original work (independent creations is a defense); and (2) whether the two works share enough unique features to give rise to a breach of the duty not to copy another's work. The Court found that West had an opportunity to copy the work based on plaintiff's relationship with West's manager and collaborator.
"Once a plaintiff establishes that a defendant could have copied her work, she must separately prove—regardless of how good or restricted the opportunity was—that the allegedly infringing work is indeed a copy of her original." The Court was not not persuaded that the similarities alleged by Plaintiff rose to the level of copyright infringement. The Nietzsche aphorism is commonly used (indeed, was the subject of another Top 100 song by Kelly Clarkson at the time of oral argument of the appeal). Next, the Copyright Act does not protect rhyme pattern, a method of expression, but instead protects only the actual expression. Lastly, references in both songs to the model Kate Moss were entirely different.
"Vince P’s theory is that the combination of the songs’ similar hooks, their shared title, and their references to Kate Moss would permit a finding of infringement. But, as we have discussed, in the end we see only two songs that rhyme similar words, draw from a commonplace maxim, and analogize feminine beauty to a specific successful model. These songs are separated by much more than “small cosmetic differences,” JCW, 482 F.3d at 916; rather, they share only small cosmetic similarities. This means that Vince P’s claim for copyright infringement fails as a matter of law. The judgment of the district court is AFFIRMED."
Plaintiff sued Kanye West, alleging that West's song "Stronger" infringed Plaintiff's song, also entitled "Stronger". The hook to both songs draws from the aphorism coined by Friedrich Nietzsche: "what does not kill me, makes me stronger." The District Court granted West's motion to dismiss, and the 7th Circuit affirms, agreeing that the two songs are not similar enough to support a finding of copyright infringement.
The court structured its analysis as (1) whether West had an actual opportunity to copy the original work (independent creations is a defense); and (2) whether the two works share enough unique features to give rise to a breach of the duty not to copy another's work. The Court found that West had an opportunity to copy the work based on plaintiff's relationship with West's manager and collaborator.
"Once a plaintiff establishes that a defendant could have copied her work, she must separately prove—regardless of how good or restricted the opportunity was—that the allegedly infringing work is indeed a copy of her original." The Court was not not persuaded that the similarities alleged by Plaintiff rose to the level of copyright infringement. The Nietzsche aphorism is commonly used (indeed, was the subject of another Top 100 song by Kelly Clarkson at the time of oral argument of the appeal). Next, the Copyright Act does not protect rhyme pattern, a method of expression, but instead protects only the actual expression. Lastly, references in both songs to the model Kate Moss were entirely different.
"Vince P’s theory is that the combination of the songs’ similar hooks, their shared title, and their references to Kate Moss would permit a finding of infringement. But, as we have discussed, in the end we see only two songs that rhyme similar words, draw from a commonplace maxim, and analogize feminine beauty to a specific successful model. These songs are separated by much more than “small cosmetic differences,” JCW, 482 F.3d at 916; rather, they share only small cosmetic similarities. This means that Vince P’s claim for copyright infringement fails as a matter of law. The judgment of the district court is AFFIRMED."
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