Murphy v. Lazarev, No. 14-5028 (6th Cir. Oct. 17, 2014) [File Name: 14a0790n.06]
The Sixth Circuit affirmed dismissal of copyright infringement and breach of contract claims by two American co-authors of a song, Almost Sorry, against a Russian pop artist because there were numerous licensing agreements that granted defendant sweeping permission to record and perform the song. First, the Court held that the defendant did not waive his affirmative defense of "license," even though defendant did not file an answer to the amended complaint, because the plaintiffs were on notice of his affirmative defenses from an early stage in the lawsuit (when defendant filed a pro se letter in response to the complaint), thus satisfying the purposes of Rule 8. Second, the Court held that defendant had a valid express sub-license to record the song until 2013.
October 17, 2014
Wyclef Escapes Infringement Claim Because "Actual Sounds" Not Copied
Pryor v. Jean, No. CV 13-02867, 2014 BL 283332 (C.D. Cal. Oct. 08, 2014) [Doc. 36].
Plaintiff, who claimed that his 1970's song "Bumpin' Bus Stop" was infringed by the defendants use of a sample in the Wyclef Jean song "Step Up" recorded in 2006, had his copyright infringement case dismissed. The issue was that Plaintiff's song had appeared on two albums. The song first appeared on a recording referred to as the "Gold Future" record. Later, the Gold Future record was remastered, shortened in duration, and Plaintiff's band name was changed. The latter record was referred to as the "Private Stock" record. Years later, Defendants licensed the song from the Private Stock record.
The existence of two separate sound recordings (the Gold Future record and the
Private Stock remaster) was important, as the substantive allegations at issue referred only to copyright to the Gold Future record, and not to the "Bumpin'
Bus Stop" musical composition featured in both the Gold Future record and the
Private Stock record. The Court found: "Under 17
U.S.C. § 114(b), Plaintiffs have the exclusive right to duplicate,
rearrange, or remix the 'actual sounds' of the
Gold Future record. Defendants did not do anything with those 'actual sounds.' Rather, Defendants used licensed 'actual sounds' from the Private Stock record. Because the TAC's First and Second claims for relief are premised solely upon
infringement of the Gold Future sound recording copyright, those claims are
DISMISSED, with prejudice."
October 16, 2014
Former Band Member Enjoined From Using "Commodores" Mark For His New Band
Commodores Entertainment Corp. v. Thomas McClary, 6:14-cv-1335 (M.D. Fla. dated Oct. 9, 2014).
The Court granted the band "The Commodores" a preliminary injunction enjoining one of its founding members from performing under the name “The Commodores featuring Thomas McClary” or “The 2014 Commodores.”
First, the Court found that Plaintiff has demonstrated a substantial likelihood of success on its trademark infringement claim. Defendant had left the band in 1984. "When members of a band dispute ownership of a mark associated with the band, courts have found that members who remain active and associated with the band have better title to the mark than those who do not." Continuing, "Defendant no longer has a valid claim to ownership over the Marks. Rather, the band members who remained after Defendant left in 1984 have prevailing ownership because they maintained continuity with the group and have been in a position to control the quality of services of the Marks associated with the band name. Defendant has not put forward any evidence to suggest that he maintained quality or control over the Marks associated with The Commodores after he left; rather, it was the other original band members who stayed with the group that continued to control the nature and quality of the Marks, went on to win a Grammy, and further expanded the band’s fan base and recognition." (Internal cit. om.).
The Court also found that there is a likelihood that consumers would confuse the Grammy award winning band, ‘the Commodores,’ with the ‘The Commodores featuring Thomas McClary’ and/or ‘The 2014 Commodores'. Due to the trademark infringement, there was a presumption of irreparable harm, and the Court found the balance of equities in plaintiff's favor.
The Court granted the band "The Commodores" a preliminary injunction enjoining one of its founding members from performing under the name “The Commodores featuring Thomas McClary” or “The 2014 Commodores.”
First, the Court found that Plaintiff has demonstrated a substantial likelihood of success on its trademark infringement claim. Defendant had left the band in 1984. "When members of a band dispute ownership of a mark associated with the band, courts have found that members who remain active and associated with the band have better title to the mark than those who do not." Continuing, "Defendant no longer has a valid claim to ownership over the Marks. Rather, the band members who remained after Defendant left in 1984 have prevailing ownership because they maintained continuity with the group and have been in a position to control the quality of services of the Marks associated with the band name. Defendant has not put forward any evidence to suggest that he maintained quality or control over the Marks associated with The Commodores after he left; rather, it was the other original band members who stayed with the group that continued to control the nature and quality of the Marks, went on to win a Grammy, and further expanded the band’s fan base and recognition." (Internal cit. om.).
The Court also found that there is a likelihood that consumers would confuse the Grammy award winning band, ‘the Commodores,’ with the ‘The Commodores featuring Thomas McClary’ and/or ‘The 2014 Commodores'. Due to the trademark infringement, there was a presumption of irreparable harm, and the Court found the balance of equities in plaintiff's favor.
SESAC Antitrust Settlement Submitted For Approval In Class Action
Meredith Corp. et al. v. SESAC, 1:09-cv-09177-PAE (S.D.N.Y. filed 10/15/14) [Doc. 174].
Plaintiffs filed an unopposed motion for approval of the parties' settlement of the class action antitrust claims. In their motion, Plaintiffs summarize the first prong of the settlement as: "under the contemplated settlement, SESAC will be bound through 2035 by some of the same core conduct restrictions that constrain the anti-competitive potential, at least as it relates to their dealings with local stations, of the other two U.S. performance rights organizations ('PROs'), ASCAP and BMI, in their consent decrees with the Antitrust Division of the Department of Justice." Notably, rather than a "rate court", the settlement provides that disputes should be submitted for binding arbitration.
Plaintiffs further summarize the second prong of the settlement as follows: "the proposed settlement will provide significant monetary relief to local stations. SESAC has agreed to pay $58.5 million into a settlement fund. Those monies will be used to reimburse local stations for the claimed inflated license fees they have paid since 2008 as a result of the alleged anti-competitive conduct that was the subject of this lawsuit." In addition, the monies will be used to reimburse for legal fees and costs.
Plaintiffs filed an unopposed motion for approval of the parties' settlement of the class action antitrust claims. In their motion, Plaintiffs summarize the first prong of the settlement as: "under the contemplated settlement, SESAC will be bound through 2035 by some of the same core conduct restrictions that constrain the anti-competitive potential, at least as it relates to their dealings with local stations, of the other two U.S. performance rights organizations ('PROs'), ASCAP and BMI, in their consent decrees with the Antitrust Division of the Department of Justice." Notably, rather than a "rate court", the settlement provides that disputes should be submitted for binding arbitration.
Plaintiffs further summarize the second prong of the settlement as follows: "the proposed settlement will provide significant monetary relief to local stations. SESAC has agreed to pay $58.5 million into a settlement fund. Those monies will be used to reimburse local stations for the claimed inflated license fees they have paid since 2008 as a result of the alleged anti-competitive conduct that was the subject of this lawsuit." In addition, the monies will be used to reimburse for legal fees and costs.
October 11, 2014
Punitive Damages Verdict Significantly Reduced; Defendant Granted Judgment Notwithstanding Verdict On Cover Art And DMCA "Red Flag" Theories
Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (S.D.N.Y. filed Sep. 29, 2014) [Doc. 629].
Defendant moved for judgment as a matter of law, or alternatively a new trial, and for remittur following a $48,061,073 jury verdict in favor of plaintiffs, who consisted of record labels and publishers who had filed copyright and unfair competition claims alleging that defendant and MP3Tunes made infringing copies of copyright songs and cover art. The motion was denied in part, and granted in part. Specifically, defendant's motion for judgment as a matter of law was granted as to plaintiffs' claims of (1) public display rights in cover art, and (2) copyright infringement under "red flag" knowledge and willful blindness theories (except for certain works sideloaded and which the source domain's URL was obviously infringing and viewed by a company executive). Further, defendant's motion for a new trial on punitive damages was granted unless plaintiffs elected to remit the jury's punitive damage award to $750,000.
Defendant moved for judgment as a matter of law, or alternatively a new trial, and for remittur following a $48,061,073 jury verdict in favor of plaintiffs, who consisted of record labels and publishers who had filed copyright and unfair competition claims alleging that defendant and MP3Tunes made infringing copies of copyright songs and cover art. The motion was denied in part, and granted in part. Specifically, defendant's motion for judgment as a matter of law was granted as to plaintiffs' claims of (1) public display rights in cover art, and (2) copyright infringement under "red flag" knowledge and willful blindness theories (except for certain works sideloaded and which the source domain's URL was obviously infringing and viewed by a company executive). Further, defendant's motion for a new trial on punitive damages was granted unless plaintiffs elected to remit the jury's punitive damage award to $750,000.
Grooveshark And Its Officers Liable For Copyright Infringment Based On Direct Uploads By Officers And Employees
UMG Recording, Inc. v. Escape Media Group, Inc. No. 1:11-cv-08407-TPG (S.D.N.Y. filed Sep. 29, 2014) [Doc. 100].
This case involved "Grooveshark" and the direct upload of plaintiffs' copyright music by defendant's officers and employees. The Court granted plaintifss' motion for spoliation sanctions, and granted plaintiffs' summary judgment on nearly all of their claims. As to spoliation sanctions, the Court found that defendants acted with a culpable state of mind when they deleted user upload information and relevant source code. Based on the spoliation, the Court found that an individual defendant directly infringed plaintiffs' copyright recordings; however, the Court did not agree with plaintiffs' request that it find 10,000 instances of infringement and instead found that plaintiffs were entitled to judgment as a matter of law that that defendant illegally uploaded a small percentage (144) of the recordings. Similarly, the Court found that the other employees uploaded a much smaller percentage of additional files than requested by plaintiffs.
Turning to the summary judgment motion, the court first found that a certain expert report was admissible. The Court then addressed defendants' affirmative defenses, and held that the claims were not barred by the statute of limitations, and that defendants' could not set forth a claim for equitable estoppel (or laches or waiver). On plaintiffs' copyright claims, the Court found that plaintiffs established that defendants illegally uploaded 5,977 sound recordings (plaintiffs had requested a much higher number). Accordingly, defendants were directly liable for infringement of plaintiffs' distribution, reproduction and public performance rights. Further, Escape was liable for vicarious and inducement infringement because it had the ability to control its employee's infringing activity and instructed its employees to upload as many files as possible to Grooveshark as a condition of their employment. Escape also materially contributed to the infringing employee uploads, and the Court granted plaintiffs summary judgment on their claim for contributory infringement. The corporate officers were also liable., jointly and severally with the company.
This case involved "Grooveshark" and the direct upload of plaintiffs' copyright music by defendant's officers and employees. The Court granted plaintifss' motion for spoliation sanctions, and granted plaintiffs' summary judgment on nearly all of their claims. As to spoliation sanctions, the Court found that defendants acted with a culpable state of mind when they deleted user upload information and relevant source code. Based on the spoliation, the Court found that an individual defendant directly infringed plaintiffs' copyright recordings; however, the Court did not agree with plaintiffs' request that it find 10,000 instances of infringement and instead found that plaintiffs were entitled to judgment as a matter of law that that defendant illegally uploaded a small percentage (144) of the recordings. Similarly, the Court found that the other employees uploaded a much smaller percentage of additional files than requested by plaintiffs.
Turning to the summary judgment motion, the court first found that a certain expert report was admissible. The Court then addressed defendants' affirmative defenses, and held that the claims were not barred by the statute of limitations, and that defendants' could not set forth a claim for equitable estoppel (or laches or waiver). On plaintiffs' copyright claims, the Court found that plaintiffs established that defendants illegally uploaded 5,977 sound recordings (plaintiffs had requested a much higher number). Accordingly, defendants were directly liable for infringement of plaintiffs' distribution, reproduction and public performance rights. Further, Escape was liable for vicarious and inducement infringement because it had the ability to control its employee's infringing activity and instructed its employees to upload as many files as possible to Grooveshark as a condition of their employment. Escape also materially contributed to the infringing employee uploads, and the Court granted plaintiffs summary judgment on their claim for contributory infringement. The corporate officers were also liable., jointly and severally with the company.
Apple Succeeds In Having Certain Audio Distribution Patents Deemed Unpatentable As Obvious
Apple Inc. v. Sightsound Technologies, LLC, Related Case Nos. CMB2013-00023 and CMB2013-00020 (PTAB Oct. 7, 2014) [Papers 101 and 105, respectively].
Apple succeeded in having the PTAB hold that certain claims in patents relating to a "system and associated method for the electronic sales and distribution of digital audio or video signals" are unpatentable. The PTAB concluded that certain claims would have been obvious based on existing publications by non-parties, pursuant to 35 USC 103(a). However, Apple did not succeed in establishing that the claims were anticipated under 35 USC 102(a).
Apple succeeded in having the PTAB hold that certain claims in patents relating to a "system and associated method for the electronic sales and distribution of digital audio or video signals" are unpatentable. The PTAB concluded that certain claims would have been obvious based on existing publications by non-parties, pursuant to 35 USC 103(a). However, Apple did not succeed in establishing that the claims were anticipated under 35 USC 102(a).
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