District of Massachusetts Grants Prince’s Estate Permanent Injunction Against YouTuber Who Repeatedly Posted Live Prince Performances

Comerica Bank & Trust, N.A. v. Habib, No. 17-12418-LTS, 2020 WL 58527 (D. Mass. Jan. 6, 2020).

Prince’s estate alleged that Defendant committed copyright infringement and violated the federal civil anti-bootlegging statute by recording and posting several videos of live Prince concerts to YouTube. In response, Defendant argued fair use, which failed as the District of Massachusetts found that all four factors weighed in favor of Prince’s estate.

Defendant also moved for summary judgment based on various other defenses, including non-commercial use and good faith use, which the court denied as well.

Moreover, Prince’s estate moved to increase the award of statutory damages under the Copyright Act based on Defendant’s willful infringement. The court granted this motion as Defendant’s continued posting of similar videos and insistence that “every artist encourages people to post videos,” which showed disregard for musician rights.

As to Plaintiff’s anti-bootlegging claim, the Court discussed how the statute is rarely litigated and noted that the question of “whether [the statute’s] protections are descendible and may be invoked by the estate of a once-protected performer” has never been addressed. The court provided Plaintiffs the option to file a supplemental brief on the question if it wishes.

The court also denied Defendant’s defense that Prince’s broad statement that “nobody sues their fans . . . fans sharing music with each other, that’s cool” acted as an implied license to post the videos. As such, the Court granted Plaintiff’s motion for a permanent injunction and scheduled a damages trial for March 2, 2020. [JM]

Film Festival Temporarily Enjoined From Screening Aretha Franklin Documentary

Franklin v. Nat'l Film Preserve, No. 15-cv-1921 (D. Colo. filed 9/4/2015) [Doc. 14].

The Court issued a temporary restraining order enjoining the Telluride Film Festival from screening a documentary film about Aretha Franklin, which consisted primarily of previously unreleased footage from a 1972 concert.  The deed granting the film producer rights in the footage required Ms. Franklin's consent to use the footage, which defendant did not obtain.

The Court found that Ms. Franklin has a strong interest in her rights of publicity, and to the use of her name/likeness.  She also had a federal statutory right to prevent bootlegging.  17 USC 1101(1).  The Court found that the film, which essentially recreated the entire concert experience, was not a fair use, and that a TRO would preserve the status quo.

New York Law On Photographing And Recording Concerts

In researching for an unrelated matter, I came across New York's Arts and Cultural Affairs Law § 31.01.  The law was enacted in 1983.  Imagine how it might apply today, with the abundance of iPhones and other smart-phones with image capturing and sound recording capabilities.

The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so."  Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.

Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance.  Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre. 

If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.  

The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."

There are no reported cases under this statute.

 

Rolling Stones Take on the Beatles-Fuego Suit

Here.

Of note is the following: "The lawsuit states that Fuego does not have permission to sell the fifteen-song performance because at the time of the recording the Beatles had already entered into an exclusive contract with EMI prohibiting the third party recordings of their concerts." (Emphasis added.)

Query - is Rolling Stone's analysis flawed? Or do they merely need to clarify?

The EMI-Beatles contract would likely have said something like "we (EMI) have the exclusive right to exploit your sound-recordings, which are really OUR sound recordings because any recording you make -- live, or in the studio -- you assign the copyright to us and/or is a work made for hire".

So, Fuego didn't have permission to sell the performance because EMI had the right to record and exploit Beatles' live performances. That the agreement prohibited third party recordings merely goes to the fact that Fuego did not get permission to record and/or exploit the concerts from EMI. Even if the Beatles had not already entered into a recording agreement with EMI, there would still need to be authorization from someone (e.g., the Beatles). Thus, notwithstanding the contracts relevance, isn't its existence at the time of the recording dispositive as to standing -- who is the proper plaintiff -- rather than to the issue of copyright liability?

If 6 Was 9

Experience Hendrix -- who since 1995 has owned and administered all the music and related rights created by the legendary guitarist, singer and songwriter Jimi Hendrix -- is in a legal battle to suppress over 200 bootlegged recordings purchased by Fuego Entertainment. The bootlegged recordings were previously marketed in the UK, and Fuego Entertainment intends to resume their unauthorized exploitation despite appellate decisions in England rejecting claims that the UK distributor had rights to distribute and license the recordings.

If OTCS may direct a Hendrix quote to Fuego, "You're just like crosstown traffic - so hard to get through to you!"

Blue Monk

Yesterday, members of the jazz ensemble The Thelonious Monk Quartet (John Ore and Frankie Dunlop) filed suit against Thelonious Monk's record label (and others) for alleged copyright infringement and bootlegging arising from the broadcast of live musical perfomrances of the artists while members of the ensemble.

OTCS imagines the following defense could be fatal to plaintiffs: WORK MADE FOR HIRE! Time will tell...

[John Ore; Francis Dunlop; Robin Dunlop v. Thelonious Records Inc.; Thelonious S. Monk Jr. aka TS Monk; Peter Grain; filed 11/29/2007; CV-10681 SDNY]