Jay Z won a motion to dismiss a copyright infringement case alleging that his alleged sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Jay Z allegedly sampled the recorded “oh” from the recording Hook &Sling Part I Eddie Bo and the Soul Finders. The “oh” in question appears once in Hook & Sling but allegedly appears 42 times in Run This Town. In a direct refutation of the Bridgeport Music case from the 6th Circuit, the SDNY court relied on 2nd Circuit precedent that distinguishes between “factual copying” and “actionable copying.” The former “requires only the fact that the infringing work copies something from the copyrighted work; the latter . . . requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement . . . has occurred.” Judge Kaplan concluded that “In arguing that the Court should find qualitative significance simply because defendants have actually copied its work, plaintiff improperly conflates factual copying and actionable copying.”
Judge McMahon has indicated she is considering reconsidering her prior ruling in which she found a performance right in sound recordings fixed before 1972. Her order is below.
The SDNY recently found that Toto’s recording contract with Sony did not obligate Sony to pay Toto 50% of royalties from digital sales through Internet retailers such as iTunes. This outcome is different from the FBT case out of the 9th Circuit, where similar language was interpreted differently. So, what is the difference?
The antitrust case brought by the Television Music License Committee against SESAC detailed here previously has been settled. SESAC agreed to pay the TMLC members $43mm as damages (i.e., excessive royalty fees) and $16mm in legal fees. The papers are below.
“A music rights group has become the first organization to successfully force a copyright-focused website blockade in freedom-friendly Iceland. Following a District Court ruling, ISPs including Vodafone must now block The Pirate Bay and Deildu, Iceland’s largest private torrent site.” Full story here.
Those who cannot remember the past are condemned to repeat it. George Santayana
Don Henley successfully sued retailer Dillards in 1999 over an advertisement that featured a photograph of a man wearing a henley shirt with the words, “This is Don” in large print, beside the picture, and an arrow pointing toward the man’s head from the words. Underneath the words is the statement, “This is Don’s henley” in the same size print, with a second arrow pointing to the shirt.
Along comes Duluth Trading, which sent around an email advertisement that featured a picture of a henley shirt and the words “Don A Henley and Take It Easy,” seemingly a reference to the Eagle’s breakthrough song “Take It Easy” co-written by Jackson Browne and Glenn Frey.
A magistrate judge has recommended that the lawsuit brought by VerStandig Broadcasting should be dismissed on jurisdictional grounds; i.e., for lack of Article III standing. In finding that the plaintiffs’ declaratory action failed to raise a justiciable controversy, the judge found that the issue of copyright liability is not “traceable” to SoundExchange because SoundExchange does not own or enforce copyrights Verstandig might infringe. As the judge stated: “Any dispute that may arise in that scenario is between the copyright owner and the broadcaster. Thus, the copyright owners themselves, who are ‘not party to this litigation, must act’ (or not act, as the case may be) in order for this particular injury to be cured.”
Judge Rogers denied the parties cross motions to exclude certain expert testimony of Roger Noll, who was an expert for Pandora in a recent case, and Kevin Murphy, who was an expert adverse to Pandora in that same case. The Judge also denied Apple’s motion for summary judgment, sending the 9 year old case to trial.
The wife of the writer of The Monkees’ hit “Daydream Believer” is suing EMI over foreign royalties, arguing that EMI’s wholly-owned foreign subsidiaries cannot deduct a portion of royalties prior to distributing the royalties to EMI U.S.