Sirius XM Radio, Inc. v. Flo & Eddie, Inc.; No. 15-497, (2d Cir. 04/15/2015) (Doc. 30).
In the pre-1972 sound recording case between Sirius XM and the Turtles, the Second Circuit Court of Appeals granted Sirius XM's petition, pursuant to 28 U.S.C. 1292(b), for leave to appeal the district court’s orders denying summary judgment and reconsideration. Generally, federal appellate courts have limited jurisdiction over interlocutory decisions (e.g., injunctions). However, the appellate court has discretion to permit an appeal from an interlocutory appeal when the district judge is explicitly of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b).
April 16, 2015
April 9, 2015
Fraudulent DMCA Take-Down Notice May Be Basis For Claim If iTunes Stores Music At Direction Of A User
Distribuidora De Discos Karen, C por A. v. Seijas, No. 13 Civ. 5200 (NRB), 2015 BL 93133 (S.D.N.Y. Mar. 26, 2015).
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
April 6, 2015
Partial Attorney's Fees Awarded In MP3Tunes
Capitol Records, Inc. v. MP3Tunes, No. 1:07-cv-09931-WHP-FM (SDNY filed 04/03/15) [Doc. 689]
Record company and music publisher plaintiffs, who succeeded at trial, moved for an award of partial attorneys' fees and costs under the Copyright Act, and pre-judgment and post-judgment interest under Fed. R. Civ. P. 59 against defendant MP3tunes. The Court granted the motion for partial attorneys' fees, in part, denied the motion for pre-judgment interest, and granted the motion for post-judgment interest.
Record company and music publisher plaintiffs, who succeeded at trial, moved for an award of partial attorneys' fees and costs under the Copyright Act, and pre-judgment and post-judgment interest under Fed. R. Civ. P. 59 against defendant MP3tunes. The Court granted the motion for partial attorneys' fees, in part, denied the motion for pre-judgment interest, and granted the motion for post-judgment interest.
March 6, 2015
Breach Of Contract Claim Survives In "Daydream Believer" Royalty Suit Concerning Foreign Publishing
Stewart v. Screen Gems-EMI Music, Inc., No. 3:14-cv-04805 (N.D. Cal. filed Mar. 2, 2015) [Doc. 45].
Plaintiff alleges that defendants -- various EMI defendants -- wrongfully withheld publishing royalties to the song "Daydream Believer" written by Plaintiff's late-husband. The claims arise out of a 1967 songwriter's agreement, which has a "net receipts" (not "at source") arrangement, meaning that the publisher is only obligated to remit to the songwriter a certain percentage of revenue the publisher actually receives after deducting applicable fees and costs. Plaintiff contended that Defendants were improperly deducting from the song's foreign receipts fees that defendant paid to affiliated foreign sub-publishers that are alter egos of defendant and operate as part of a single enterprise (i.e., defendant was effectively paying itself and then deducting those payments from the receipts to reduce the "net receipts"). Defendants moved to dismissed. The Court granted the motion to dismiss of defendants EMI and EMI North America for lack of personal jurisdiction; but, found that Plaintiff had stated a claim against defendant Screen Gems-EMI for breach of contract, breach of the implied covenant of good faith and fair dealing, and for an accounting.
Plaintiff alleges that defendants -- various EMI defendants -- wrongfully withheld publishing royalties to the song "Daydream Believer" written by Plaintiff's late-husband. The claims arise out of a 1967 songwriter's agreement, which has a "net receipts" (not "at source") arrangement, meaning that the publisher is only obligated to remit to the songwriter a certain percentage of revenue the publisher actually receives after deducting applicable fees and costs. Plaintiff contended that Defendants were improperly deducting from the song's foreign receipts fees that defendant paid to affiliated foreign sub-publishers that are alter egos of defendant and operate as part of a single enterprise (i.e., defendant was effectively paying itself and then deducting those payments from the receipts to reduce the "net receipts"). Defendants moved to dismissed. The Court granted the motion to dismiss of defendants EMI and EMI North America for lack of personal jurisdiction; but, found that Plaintiff had stated a claim against defendant Screen Gems-EMI for breach of contract, breach of the implied covenant of good faith and fair dealing, and for an accounting.
February 26, 2015
State-Law Copyright And Unfair Competition Claims Relating To In-Flight Music Services Not Preempted
UMG Recordings v. Global Eagle Entertainment, No. 14-03466 MMM (C.D. Cal. dated Feb. 23, 2015).
The Court denied defendant airline's motion to dismiss claims for copyright infringement under California law, along with California unfair competition claims, finding that even if in-flight entertainment qualifies as a service as that term is used in the Airline Deregulation Act, any connection between the service and plaintiffs' claims was too tenuous and remote to justify preemption.
Plaintiffs were various record companies and music publishers. They contended that defendants provided “various airlines” sound recordings and music videos that the airlines then publicly perform to their passengers. Defendants contended that the court should dismiss the record company plaintiffs’ state law copyright infringement and unfair competition claims because the claims were preempted by the Deregulation Act. Congress enacted the Deregulation Act in 1978 after determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation services."
The Court denied defendant airline's motion to dismiss claims for copyright infringement under California law, along with California unfair competition claims, finding that even if in-flight entertainment qualifies as a service as that term is used in the Airline Deregulation Act, any connection between the service and plaintiffs' claims was too tenuous and remote to justify preemption.
Plaintiffs were various record companies and music publishers. They contended that defendants provided “various airlines” sound recordings and music videos that the airlines then publicly perform to their passengers. Defendants contended that the court should dismiss the record company plaintiffs’ state law copyright infringement and unfair competition claims because the claims were preempted by the Deregulation Act. Congress enacted the Deregulation Act in 1978 after determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation services."
February 25, 2015
Bob Marley Heirs Succeed On Appeal In Merchandising Case
Fifty-Six Hope Road Music v. A.V.E.L.A., No 12-17502 (9th Cir. Feb. 20, 2015).
The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise. Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court. The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights. Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful. Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.
The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise. Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court. The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights. Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful. Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.
February 23, 2015
Limited Permanent Injunction Entered In Beastie Boys v. Monster Case
Beastie Boys v. Monster Energy, No. 12-cv-06065 (S.D.N.Y. filed 02/20/15) [Doc. 201].
After prevailing at trial, the Court granted the Beastie Boys' motion for a permanent injunction, but agreed with Monster that the injunction "must be tightly limited to cover only the infringing video." The Beastie Boys had sought to broadly enjoin Monster from using the Beastie Boys' music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argued that, if the Court decided to issue a permanent injunction at all, that relief should be limited to the video at issue in the case. The Court applied the traditional four-factor test in exercising its equitable discretion to grant such relief, and found that "In the Court's view, the injunction the Beastie Boys propose is highly overbroad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement."
After prevailing at trial, the Court granted the Beastie Boys' motion for a permanent injunction, but agreed with Monster that the injunction "must be tightly limited to cover only the infringing video." The Beastie Boys had sought to broadly enjoin Monster from using the Beastie Boys' music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argued that, if the Court decided to issue a permanent injunction at all, that relief should be limited to the video at issue in the case. The Court applied the traditional four-factor test in exercising its equitable discretion to grant such relief, and found that "In the Court's view, the injunction the Beastie Boys propose is highly overbroad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement."
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