2d Cir. To Hear Vimeo Interlocutory Appeal

Capitol Records, LLC v. Vimeo LLC, 2d Cir. Index Nos. 14-15 and 14-16 (2d Cir. April 9, 2014) [Doc. 57].

The Second Circuit agreed to hear interlocutory appeals, pursuant to 28 U.S.C. § 1292(b), and to consolidate the appeals.  The Second Circuit is now in a position to rule on whether the DMCA applies to pre-1972 sound recordings, and to clarify the willful blindness doctrine.

Use Of Rapper's Image On Website Constitutes Copyright Infringement And Violated Right Of Publicity; Questions Remain on Trademark And Third-Party Contribution Claims

Jackson v. Odenot, No. 09-cv-05583 (S.D.N.Y. filed March 24, 2014) [Doc. 150].

Rapper 50 Cent was granted summary judgment on his claims against a website for the unauthorized use of photographs that appeared on the masthead of the website.  50 Cent's claim for copyright infringement was based on a registration for a sound recording which included the relating artwork/photos, and exact copies were used by the defendants.  50 Cent's claim under New York state law for the right of publicity (Civil Rights Law sections 50-51) succeeded because: (1) the pictures "are recognizable likenesses of Jackson because someone familiar with Jackson would be able to identify him in each of the mastheads", and (2) defendants' waived their statute of limitations defense.  However, the Court found that there were questions of fact that precluded summary judgment on 50 Cent's claim under the Lanham Act for false endorsement, 15 USC 1125(a)(1), and also on his claim for common law unfair competition.  The Court did dismiss the defendants' affirmative defenses of fair use, implied license, equitable estoppel, and unclean hands, and found that the other affirmative defenses had been abandoned.  Lastly, the Court held that defendant could not recover on a contribution theory under copyright and trademark law against the third-party defendants, but could seek contribution under the New York state claims.

Rate Court Sets ASCAP Fee For Pandora

IN RE PETITION OF PANDORA MEDIA, INC., No. 12 Civ. 8035 (S.D.N.Y. filed 03/18/14) [Doc. 738].

In a lengthy decision, the ASCAP rate court held that: "The headline rate for the ASCAP-Pandora license for the years 2011 through 2015 is set at 1.85% of revenue for every year of the license term. Pandora is entitled to take a deduction for any direct payments to publishers made following their partial withdrawals from ASCAP."

SESAC Can't Escape Antitrust Claims

Meredith Corp. v. SESAC LLC, No. 09 Civ. 9177 (PAE)., 2014 BL 57263 (S.D.N.Y. Mar. 03, 2014).

The issue in this putative class action is whether SESAC's licensing practices since 2008 have violated federal antitrust law. Plaintiffs are groups of local television stations.  They sue SESAC aand allege that, in practice, they must obtain licenses for some music in SESAC's repertory. That is because SESAC's repertory is large and includes works so ubiquitous that some are inevitably embedded in shows that the stations acquire and wish to air.  Plaintiffs contend that, since 2008, SESAC, with its affiliates' assent, has taken steps to make illusory any alternative to the blanket license it sells, which conveys the right to play the music of all SESAC affiliates.  Having insulated this product from competition and forced local television stations to acquire it, plaintiffs allege, SESAC has set an exorbitant price for that "all or nothing" license, even though stations have no interest in buying the rights to the entirety of SESAC's repertory. Plaintiffs assert that SESAC and its affiliates have thereby violated § 1 of the Sherman Act, 15 U.S.C. § 1, by combining to unlawfully restrain trade; and § 2 of the same Act, 15 U.S.C. § 2, by conspiring to monopolize the market for the performance rights to the musical works within SESAC's repertory.  Plaintiffs also assert a monopolization claim against SESAC under § 2.

SESAC moved for summary judgment. The Court denied the motion as to all three counts, except that on the § 1 claim, the Court granted summary judgment to defendants in two ways that narrowed that claim. Specifically, the Court rejected plaintiffs' (1) per se theory of liability; and (2) claim of an agreement to restrain trade among all 20,000-plus SESAC affiliates, as opposed to among only the far smaller subset (under 1%) of affiliates who were party to a supplemental affiliation agreement with SESAC.

The Court first reviewed the history of antitrust litigation involving the PROs' licensing practices. The Court then considered the § 1 claim, assessing whether (1) the conduct plaintiffs assail is amenable to per se condemnation; (2) there is adequate evidence of concerted action among SESAC's affiliates to restrain trade; and (3) the evidence would support a conclusion that the anti-competitive effects of SESAC's conduct outweighed its pro-competitive tendencies, i.e., whether a jury could find harm to competition. The Court then considered the § 2 claims, addressing first the monopolization claim and then the claim of a conspiracy to monopolize.

Publisher Not Liable For Contributory Liability In Sampling Case Because Lacked Knowledge

Prior v. Warner/Chappel, No. 13-4344 (C.D. Cal. Feb. 20, 2014).

The court dismissed plaintiff's contributory copyright infringement claim against defendant music publisher because the complaint failed to allege the defendant "knew or had reason to know that [the song] included an unauthorized, infringing sample...".  Moreover, the complaint failed to plausibly allege how the defendant knew that the directly infringing defendants would infringe as a result of the publisher's licensing of the song.

NAPSTER Trademark Action Continues In California

Rhapsody Int'l, Inc. v. Lester & Napster.fm, Index No. C 13-05489 CRB (N.D. Cal., Feb. 24, 2014).

The Court denied defendants' motions to dismiss the trademark infringement case, concerning the mark NAPSTER, for failure to state a claim, lack of jurisdiction and improper venue.  The Court found that plaintiff stated a claim for trademark infringement, dilution, cybersquatting, unfair competition, and unfair business practices.  The Court also found that plaintiff made a prima facie showing of personal jurisdiction, and that transfer to Virginia for defendants' convenience was insufficient to warrant transfer.

Blacked Eyed Peas Not Liable For Infringement In Absence Of Access And Lack Of Similarity

Pringle v. Adams, No. 12-55998 (9th Cir. Feb. 21, 2014).

The 9th Circuit affirmed summary judgment for the defendants -- the Black Eyed Peas and related parties -- in a copyright infringement case.  The Court found: "The evidence in support of Plaintiff, however, raises only the barest possibility that Defendants had access to [the song], and Plaintiff does not argue that there is a 'striking similarity' between [the song] and Defendants’ allegedly infringing work."  The 9th Circuit also affirmed sanctions against plaintiff for violating a court order regarding service of process on one of the defendants.