Jeremih Can't Avoid Photog's Secondary Copyright Infringement Claims & Model's Publicity Claim Over Album Cover

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Rams v. Def Jam Recordings, No. 15-8671 (S.D.N.Y. Aug. 16, 2016).

Artist Jeremih's Rule 12 motion to dismiss the plaintiffs' secondary copyright infringement claim, and all of the Defendants' motion to dismiss the right of publicity claim under California law, were denied.  The case involves the use of a photo on an album cover on the hit single "Don't Tell 'Em"; the plaintiff photographer alleged copyright infringement against the artist and label, and the plaintiff model alleged violation of her right of publicity.

As to the contributory infringement claim against the defendant artist, the Court held that the photographer stated a claim.  "Drawing all reasonable inferences in favor of Plaintiffs, it is plausible that ... the recording artist, whose work is distributed by UMG under the Def Jam label, would have reason to know of the infringing use of the Subject Image on his own album cover."

As to the vicarious infringement claim against the defendant artist, again the Court held that the photographer stated a claim.  "Plaintiffs state a plausible claim that, as a recording artist...[he] had the right and ability to supervise the selection of cover artwork for his own 'Don't Tell 'Em' single."  Further, the Court found that the complaint sufficiently alleged that the artist benefited financially from the infringement.

As to the model's right of publicity claim, the Court first addressed whether the law of Denmark applied (where the model resides) or whether instead California law applies.  California's choice of law rules applied because the case had been transferred to New York from California district court.  Accordingly, the Court applied the "governmental interest" test under California law, and held that California law should apply.  "Under California law, Rams has sufficiently alleged that Defendants knowingly distributed and profited from the use of her image throughout California without her consent, violating her right of publicity."

Punitive Damages Verdict Significantly Reduced; Defendant Granted Judgment Notwithstanding Verdict On Cover Art And DMCA "Red Flag" Theories

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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.

Green Day's Use Of Illustration During Concert Was Fair Use, But Attorney's Fees Denied

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Seltzer v. Green Day, Inc. et al., No. 11-56573 [D.C. No. 2:10-cv-02103] (9th Cir. Aug. 7, 2013).

The 9th Circuits affirmed summary judgment in favor of the defendants, but vacated the attorney's fees award, in an artist's action alleging violations of the Copyright Act and the Lanham Act relating to the rock band Green Day's unauthorized use of an illustration ("Scream Icon") in the video backdrop of its stage show.

The Court found that use of the illustration in the video backdrop was a fair use under the Copyright Act: it was transformative, the illustration was a widely disseminated work of street art, the illustration was not meaningfully divisible, and the video backdrop did not affect the value of the illustration.  As to the trademark claims, the artist failed to establish any trademark rights.  In vacating the attorney's fees award under the Copyright Act, the Court found that even though defendant was successful on their fair use defense, the plaintiff did not act objectively unreasonably ("there is simply no reason to believe that Seltzer should have known from the outset that his chances of success in this case were slim to none.").

Reconsideration in MP3Tunes Case

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Capitol Records, Inc. v. MP3Tunes, LLC, No. 07-cv-9931 (S.D.N.Y. filed May 14, 2013) [Doc. 368].

All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).  Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim.  Defendant's motion regarding direct copyright infringement was granted in part and denied in part.  Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.

There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.